State v. Neimeyer ( 2021 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48572
STATE OF IDAHO, )
)
Plaintiff-Respondent, )
Boise, May 2021 Term
)
v. )
Opinion Filed: June 29, 2021
)
SHELAINA DANYELL NEIMEYER, )
Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
Twin Falls County. Thomas J. Ryan, District Judge.
The decision of the district court is affirmed.
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ben
P. McGreevy argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Andrew V.
Wake argued.
_____________________
BRODY, Justice.
This appeal hinges on whether Shelaina Danyell Neimeyer’s argument concerning
judicial notice of a municipal ordinance was properly preserved for appeal. After Neimeyer was
charged with possession of methamphetamine, marijuana, and drug paraphernalia, she filed a
motion to suppress evidence. Neimeyer contends the district court erred when it denied her
motion because: (1) the State did not prove the existence of a City of Twin Falls ordinance; and
(2) the district court was precluded from taking judicial notice of a municipal ordinance. After
the Court of Appeals affirmed the district court’s ruling, Neimeyer filed a petition for review
with this Court, which was granted. Because Neimeyer raised her argument concerning judicial
notice for the first time on appeal, we affirm the district court’s decision.
I. FACTUAL AND PROCEDURAL BACKGROUND
An employee at a gas station in Twin Falls, Idaho, contacted the police about a vehicle
that had been parked at the gas station for over an hour. The employee reported that a woman
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who had previously purchased alcohol at the gas station—later identified as Neimeyer—had not
moved from the vehicle for over 30 minutes. Consequently, Officers Tracy Thompson and
Candace Comeau were dispatched at approximately 2 a.m. to conduct a welfare check.
After he arrived at the gas station and located Neimeyer, Officer Thompson inquired
whether she had been drinking. In response, Neimeyer stated she had not consumed any alcohol
that day. Officer Thompson observed an alcoholic beverage can on the center console of
Neimeyer’s vehicle, but Neimeyer explained that she was using the empty can as an ashtray.
Officer Thompson asked Neimeyer if she needed any assistance, but she declined. At that time,
Officer Comeau, who was positioned on the other side of the vehicle, observed a bottle of
alcohol in the passenger compartment of Neimeyer’s vehicle. The seal on the bottle had been
broken, and the bottle was only partially full. Neimeyer tossed the bottle to the rear of the
vehicle, commenting that she could now drive the vehicle.
Officer Comeau then asked Neimeyer about a small, closed container on the passenger
seat. Neimeyer stated that the container was empty. When Officer Comeau asked Neimeyer if
she could show the contents of the container to Officer Thompson, she demurred. As the district
court noted:
[Neimeyer] protested by stating, “Do I really got to? I mean, I haven’t done
anything wrong.” Officer Thompson responded by stating, “Well, we have
alcohol in the vehicle now. . .” [Neimeyer] then offered to “do a test,” which this
[c]ourt takes to mean a sobriety test based on the context of the conversation.
Officer Thomson [sic] then stated, “That’s fine. What’s inside of the . . .” at which
point [Neimeyer] opened the container and showed the contents to Officer
Thompson.
After Neimeyer opened the container, Officer Thompson immediately smelled the odor of
marijuana and, after shining his flashlight into the container, observed a green, leafy substance
that he recognized as marijuana. Neimeyer quickly closed the container and placed it in her
purse.
After Officer Thompson asked Neimeyer to exit her vehicle, she complied and took her
purse with her. Neimeyer was placed in handcuffs and told she was being detained because of
the alcohol found in her vehicle, the marijuana found in the container, and the possibility that she
may be under the influence of drugs or alcohol. Officer Thompson then searched Neimeyer’s
purse and discovered incriminating evidence, including methamphetamine, marijuana, and drug
paraphernalia. As the district court explained:
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[Officer Thompson] found the black container, which contained a glass end to a
vape with green and brown residue at the end. In addition, the purse contained
small clear baggies containing a green leafy substance which Officer Thompson
recognized as marijuana, a small amount of the green leafy substance in the black
container, and a zip pouch containing a clear glass pipe with white and brown
residue, which Officer Thompson suspected to be used to smoke
methamphetamine. Also in the pouch were two plastic baggies containing white
residue, which Officer Thompson recognized as methamphetamine, and a small
gray pick, which Officer Thompson suspected to be used to clean residue out of
pipes used in the smoking of methamphetamine and marijuana.
As a result, Officer Thompson informed Neimeyer she was under arrest for possession of
methamphetamine. Officer Comeau transported Neimeyer to jail while Officer Thompson
conducted an inventory search of Neimeyer’s vehicle. During the inventory search, Officer
Thompson found a clear baggie with white and brown particles inside which subsequently tested
positive for methamphetamine.
The State charged Neimeyer with possession of methamphetamine, marijuana, and drug
paraphernalia. Neimeyer filed a motion to suppress, arguing that the police did not have probable
cause to search the small, closed container in her vehicle. During the suppression hearing,
Officer Thompson testified that, under Twin Falls City Code section 6-2-6, it was a misdemeanor
for Neimeyer to have an open bottle of alcohol in the passenger compartment of her vehicle.
Relying on Officer Thompson’s testimony, the prosecutor argued that the open bottle of alcohol
that the police observed in the passenger compartment of Neimeyer’s vehicle provided probable
cause to believe a crime had been committed: “As Officer Thompson testified, that is a
misdemeanor under Twin Falls City Code 6-2-6.” The prosecutor also argued that Neimeyer
voluntarily consented to opening the small container. Neimeyer did not object to Officer
Thompson’s testimony concerning Twin Falls City Code section 6-2-6, nor did she object to the
prosecutor’s statement referencing the municipal ordinance.
The district court subsequently issued its memorandum decision, holding that the search
was valid because Neimeyer had voluntarily consented to opening the small container, or, in the
alternative, that the search was valid under the inevitable discovery rule. As part of its analysis,
the district court quoted Twin Falls City Code section 6-2-6 verbatim. After doing so, the district
court found “that Officer Thompson’s comment implying that he and Officer Comeau had
probable cause to to [sic] arrest [Neimeyer] and conduct a search was accurate and did not render
the consent of [Neimeyer] in opening the container invalid.” Neimeyer did not object to the
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district court’s reliance on the City of Twin Falls ordinance in its decision, nor did she request an
opportunity to be heard in accordance with Idaho Rule of Evidence 201(e) (providing that a
request to be heard may be made after judicial notice has been taken in the absence of prior
notification).
Neimeyer subsequently accepted a conditional plea agreement, but reserved the right to
appeal the district court’s denial of her motion to suppress. She was sentenced to not less than
three and not more than six years in the penitentiary for possession of methamphetamine; 18
days incarceration for possession of marijuana; and 18 days incarceration for possession of drug
paraphernalia. The three sentences were ordered to be served concurrently. The district court
suspended the execution of Neimeyer’s sentence to the Board of Correction and placed her on
probation for four years.
Neimeyer timely appealed the district court’s denial of her motion to suppress. The Court
of Appeals, in an unpublished opinion, held that Neimeyer’s argument concerning judicial notice
was preserved for appeal. State v. Neimeyer, No. 46857, 2020 WL 2534003, at *3 (Idaho Ct.
App. May 19, 2020). The Court of Appeals also held, however, that: (1) the district court
properly took judicial notice of Twin Falls City Code section 6-2-6; and (2) there was substantial
evidence supporting the district court’s ruling that Neimeyer consented to the search of the
container. Id. at *5. Neimeyer subsequently filed a petition for review with this Court.
II. STANDARD OF REVIEW
When this Court grants a petition for review of a Court of Appeals decision, we give
serious consideration to the views of the Court of Appeals, but we directly review the decision of
the trial court. State v. Gonzalez, 165 Idaho 95, 97, 439 P.3d 1267, 1269 (2019) (quoting State v.
Barrett, 163 Idaho 449, 451, 414 P.3d 1188, 1190 (2018)). Therefore, this Court treats the case
as if it were on direct appeal from the trial court. Id.When this Court reviews a trial court’s order denying a motion to suppress evidence, the
standard of review is bifurcated. State v. Gonzales, 165 Idaho 667, 671, 450 P.3d 315, 319
(2019) (quoting State v. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183 (2009)). Unless clearly
erroneous, this Court will accept the trial court’s findings of fact. Id. However, we will freely
review the trial court’s “application of constitutional principles to the facts as found.” State v.
Bodenbach, 165 Idaho 577, 589, 448 P.3d 1005, 1017 (2019) (quoting State v. Moore, 164 Idaho
379, 381, 430 P.3d 1278, 1280 (2018)).
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III. ANALYSIS
Neimeyer’s appeal centers on her arguments that: (1) the State did not prove the existence
of Twin Falls City Code section 6-2-6; and (2) the district court was precluded from taking
judicial notice of a municipal ordinance. Importantly, however, Neimeyer did not raise these
arguments below. Neimeyer did not object when the State and its witness referenced Twin Falls
City Code section 6-2-6 at the suppression hearing. Further, Neimeyer did not object when the
district court took judicial notice of the ordinance in its decision denying her motion to suppress,
nor did she request an opportunity to be heard in accordance with Rule 201(e) of the Idaho Rules
of Evidence. Moreover, Neimeyer has not argued on appeal that the district court’s reliance on
the City of Twin Falls ordinance constituted fundamental error. See State v. Miller, 165 Idaho
115, 119, 443 P.3d 129, 133 (2019) (quoting State v. Bernal, 164 Idaho 190, 193, 427 P.3d 1, 4
(2018)) (stating that an alleged error that is not followed by a contemporaneous objection is
reviewed under the fundamental error doctrine).
Neimeyer contends that the issue concerning judicial notice was preserved for appeal
because it is an evolution of her argument before the district court that the police did not have
probable cause to justify a search of the container found in her vehicle. See State v. Gonzalez,
165 Idaho 95, 98, 439 P.3d 1267, 1270 (2019) (discussing the evolution of an argument).
Neimeyer also argues, in the alternative, that the issue was preserved because the trial court
decided the issue. She cites State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998), for
the proposition that she may raise an issue for the first time on appeal if the issue was decided by
the trial court below. Neimeyer contends that, because the district court addressed Twin Falls
City Code section 6-2-6 in its decision, this Court may consider whether the district court erred
by taking judicial notice of a municipal ordinance.
This Court recently clarified how it will address legal arguments raised for the first time
on appeal. Gonzalez, 165 Idaho at 96, 439 P.3d at 1268 (stating there is a need to clarify when
new issues may be addressed on appeal). In doing so, this Court stated that it “will not hold that a
trial court erred in making a decision on an issue . . . that it did not have the opportunity to
address.” Id. at 99, 439 P.3d at 1271. Rather, in most instances, a party must raise an issue before
the trial court in order to preserve the issue for appeal. Id.
[D]uring the time of an appeal, parties will ruminate on issues and case law will
be decided that may need to be applied to the specific facts of the case at hand.
However, these pragmatic evolutions do not leave room for a party to raise new
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substantive issues on appeal or adopt a new position on an issue that the trial court
has not had the opportunity to rule on.
Id. at 98, 439 P.3d at 1270. In short, “substantive issues may not be raised for the first time on
appeal . . . .” Id.
Here, Neimeyer argued below that the police did not have probable cause to search the
container found in her vehicle. In her memorandum in support of her motion to suppress,
Neimeyer argued:
In this case, officers did not have the necessary objective facts that would
lead a reasonable person to believe that the small canister would contain
contraband. Nothing suspicious and indicative of drugs was in plain view, or
“plain smell”. Ms. Neimeyer had a rational explanation for her presence in the
parking lot. There was no reason to think alcohol would be kept in a small
canister. Furthermore, possessing an open container of alcohol in a vehicle is not
even a crime when the vehicle is not on a highway or right of way. The officers’
hunch would not have supported issuance of a warrant, and does not support
probable cause for a warrantless search.
She advanced a similar argument at the suppression hearing.
During the suppression hearing, Officer Thompson stated, “When I approached the
vehicle, I suspected I had at least an open container, which is a misdemeanor violation within the
city code of having an open container in the parking lot.” In response to a question from the
prosecutor, Officer Thompson stated he was referring to Twin Falls City Code section 6-2-6.
Citing the same ordinance, the prosecutor later argued that it provided probable cause that
Neimeyer had committed a crime: “As Officer Thompson testified, [an open container] is a
misdemeanor under Twin Falls City Code 6-2-6.” Finally, the district court quoted the ordinance
verbatim. Neimeyer did not object to Officer Thompson’s testimony concerning the City of Twin
Falls ordinance at the suppression hearing, nor did she object to the prosecutor’s argument.
Further, she did not object to the district court’s reliance on Twin Falls City Code section 6-2-6
in its decision denying her motion to suppress. Additionally, Neimeyer’s notice of appeal and
amended notice of appeal do not reference the district court taking judicial notice of the City of
Twin Falls ordinance as an issue on appeal.
That said, Neimeyer argues that this issue was preserved for appeal because it is an
evolution of her probable cause argument or, in the alternative, because the district court decided
the issue below. Neimeyer’s arguments are unavailing, however, because this issue and
Neimeyer’s position on this issue were not raised below.
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We 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. To be
clear, both the issue and the party’s position on the issue must be raised before the
trial court for it to be properly preserved for appeal.
Gonzalez, 165 Idaho at 99, 439 P.3d at 1271.
Here, the district court did not have an opportunity to address Neimeyer’s contention that
a district court may not take judicial notice of a municipal ordinance. Stated differently, the issue
concerning judicial notice and Neimeyer’s position regarding that issue were not raised below.
Rather, the issue of judicial notice was raised for the first time on appeal. Fairly viewed,
Neimeyer’s argument concerning judicial notice is not a natural progression or refinement of the
probable cause argument she asserted below—it is an entirely new argument that is unrelated to
the issues addressed by the district court. Further, the issue was not “decided by” the district
court. See DuValt, 131 Idaho at 553, 961 P.2d at 644. As previously explained, Neimeyer did not
object when the State and its witness referenced Twin Falls City Code section 6-2-6 at the
suppression hearing, nor did she object when the district court relied on the ordinance in its
decision. Consequently, the district court never decided the issue of whether a trial court may
take judicial notice of a municipal ordinance or the procedure to be used.
In short, because the district court never had an opportunity to address Neimeyer’s
argument below, the issue was not preserved for appeal. Gonzalez, 165 Idaho at 99, 439 P.3d at
1271. Thus, we are not afforded an opportunity to address whether a district court is precluded
from taking judicial notice of a municipal ordinance.
IV. CONCLUSION
Because Neimeyer’s argument regarding judicial notice was not properly preserved for
appeal, we affirm the district court’s decision concerning the motion to suppress and the
judgment of conviction.
Chief Justice BEVAN, and Justices BURDICK, STEGNER, and MOELLER CONCUR.
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