State v. Jose Luis Gonzales ( 2015 )


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  •                IN THE COURT OF APPEALS OF THE STATE OF IDAHO
    Docket No. 42010
    STATE OF IDAHO,                                )     2015 Unpublished Opinion No. 347
    )
    Plaintiff-Respondent,                   )     Filed: February 11, 2015
    )
    v.                                             )     Stephen W. Kenyon, Clerk
    )
    JOSE LUIS GONZALES,                            )     THIS IS AN UNPUBLISHED
    )     OPINION AND SHALL NOT
    Defendant-Appellant.                    )     BE CITED AS AUTHORITY
    )
    Appeal from the District Court of the Fifth Judicial District, State of Idaho,
    Jerome County. Hon. John K. Butler, District Judge.
    Judgment of conviction for possession of a controlled substance and unlawful
    possession of a firearm by a felon, affirmed.
    Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
    Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
    Attorney General, Boise, for respondent.
    ________________________________________________
    MELANSON, Chief Judge
    Jose Luis Gonzales appeals from his judgment of conviction for possession of a
    controlled substance and unlawful possession of a firearm by a felon. He argues that the consent
    search of a bedroom in the residence he was visiting was unlawful and that he was illegally
    detained. For the reasons set forth below, we affirm.
    I.
    FACTS AND PROCEDURE
    Officers went to the residence at which Gonzales was staying in search of a stolen
    computer. The victim of the theft reported that an individual known as “Joe” was staying at the
    residence and that “Joe” was involved in using and dealing drugs. An officer spoke with a tenant
    of the residence and requested consent to search for the stolen computer. After conferring with
    1
    her co-tenant, the tenant consented to a search of the residence. The officer encountered an
    individual who identified himself as “Joe,” later identified as Gonzales, as he was coming down
    the hall from the area of the first bedroom. Gonzales told the officers that he did not live there,
    but occasionally stayed in the first bedroom, which was normally occupied by one of the tenants.
    Gonzales retrieved a backpack, a vest, and boots from that bedroom before the search began. In
    the bedroom, the officer discovered drug paraphernalia hidden under a large pair of pants. The
    officer then detained Gonzales and the tenants while the officer obtained a search warrant for the
    residence.   During the subsequent search, the officer discovered methamphetamine and
    marijuana in Gonzales’s vest and a firearm, baggies, and a scale in his backpack.
    Gonzales was charged with possession of a controlled substance, unlawful possession of
    a firearm by a felon, two misdemeanors, and a sentencing enhancement for being a persistent
    violator of the law. He filed a motion to suppress, arguing that the officer lacked Gonzales’s
    consent to search the first bedroom and that his detention was not supported by reasonable
    suspicion.   The district court denied the motion, finding that the discovery of the drug
    paraphernalia in the bedroom under the circumstances justified detention of all persons staying in
    the residence, including Gonzales, and that the drug paraphernalia had been discovered during a
    search consented to by the tenants, who had common authority over the premises. Pursuant to a
    plea agreement, Gonzales pled guilty to possession of a controlled substance, I.C. § 37-
    2732(c)(1), and unlawful possession of a firearm by a felon, I.C. § 18-3316(1); the remaining
    charges were dismissed and Gonzales reserved his right to appeal the denial of his motion to
    suppress. Gonzales 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,
    2
    
    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).
    III.
    ANALYSIS
    Gonzales argues that the district court erred in denying his motion to suppress.
    Specifically, he contends that he did not consent to the search of the bedroom, rendering the
    warrantless search invalid, and that the officer lacked reasonable suspicion to detain him while
    obtaining a search warrant. Thus, he claims, his constitutional right to be free from unreasonable
    searches and seizures was violated. 1
    A.     Consent
    Although a warrantless entry or search of a residence is generally illegal and violative of
    the Fourth Amendment, such an entry or search may be rendered reasonable by an individual’s
    consent. Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 231-32 (1973); State v. Johnson, 
    110 Idaho 516
    , 522, 
    716 P.2d 1288
    , 1294 (1986); State v. Abeyta, 
    131 Idaho 704
    , 707, 
    963 P.2d 387
    , 390
    (Ct. App. 1998). In such instances, the state has the burden of demonstrating consent by a
    preponderance of the evidence. State v. Kilby, 
    130 Idaho 747
    , 749, 
    947 P.2d 420
    , 422 (Ct. App.
    1997). A voluntary consent to a search, given by either a defendant or a third party with actual
    authority over the place or item to be searched, will exempt a search from the warrant
    requirement. United States v. Matlock, 
    415 U.S. 164
    , 171 (1974); Johnson, 
    110 Idaho at
    522-
    23, 
    716 P.2d at 1294-95
    ; State v. Dominguez, 
    137 Idaho 681
    , 683, 
    52 P.3d 325
    , 327 (Ct. App.
    2002). 2 Actual authority to consent to a search can come from common authority over the
    1
    Although Gonzales contends that both constitutions were violated, he provides no cogent
    reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the
    Fourth Amendment to the United States Constitution in this case. Therefore, we will rely on
    judicial interpretation of the Fourth Amendment in our analysis of Gonzales’s claims. See State
    v. Schaffer, 
    133 Idaho 126
    , 130, 
    982 P.2d 961
    , 965 (Ct. App. 1999).
    2
    Application of the constitutional safeguards against unreasonable searches and seizures
    initially depends on whether the person invoking protection had a justifiable, reasonable, or
    legitimate expectation of privacy that was invaded by some governmental action. Smith v.
    Maryland, 
    442 U.S. 735
    , 740 (1979). The defendant bears the burden of proving that he or she
    had a legitimate expectation of privacy in the place searched. See State v. Spencer, 
    139 Idaho 736
    , 739, 
    85 P.3d 1135
    , 1138 (Ct. App. 2004); State v. Dreier, 
    139 Idaho 246
    , 251, 
    76 P.3d 990
    ,
    3
    premises, resulting from mutual use of the property by persons generally having joint access or
    control for most purposes, such as joint tenants. Matlock, 
    415 U.S. at
    171 n.7; State v. Brauch,
    
    133 Idaho 215
    , 219, 
    984 P.2d 703
    , 707 (1999). Thus, consent need not come directly from the
    person whose property is to be searched, but may come from a third party who possesses
    common authority over the premises. State v. Aschinger, 
    149 Idaho 53
    , 56, 
    232 P.3d 831
    , 834
    (Ct. App. 2009); State v. Fancher, 
    145 Idaho 832
    , 838, 
    186 P.3d 688
    , 694 (Ct. App. 2008). The
    consent of one occupant with authority is insufficient only when another occupant is physically
    present and objecting to the search. Georgia v. Randolph, 
    547 U.S. 103
    , 114-15 (2006). 3
    Here, the district court found that the tenant who gave the officer permission to enter the
    residence and search for the stolen property was “the permanent tenant who stays in the [first]
    bedroom,” “mutually used the bedroom” with Gonzales, and had “common authority over the
    995 (Ct. App. 2003). Here, Gonzales has not provided argument or evidence establishing that he
    had a legitimate expectation of privacy in the bedroom; on the contrary, his argument has been
    that he was not sleeping at the residence, but merely used it to shower and wash his clothes. In
    other words, Gonzales has seemingly argued against having standing to challenge the
    constitutionality of the search. Compare Minnesota v. Carter, 
    525 U.S. 83
    , 89-90 (1998)
    (finding that defendants who were present in a residence for a few hours for a business
    transaction did not have standing to challenge the alleged search because they lacked a legitimate
    expectation of privacy in the place searched) and State v. Palmer, 
    138 Idaho 931
    , 935, 
    71 P.3d 1078
    , 1082 (Ct. App. 2003) (concluding that the defendant lacked standing to challenge a search
    because the defendant was not an overnight guest, had only known the informant-property owner
    for a week, and was present on the informant’s property solely to manufacture
    methamphetamine) with Minnesota v. Olson, 
    495 U.S. 91
    , 98-100 (1990) (holding that there may
    be some instances, such as when a defendant is an overnight guest, in which a defendant may
    challenge the search of property owned or controlled by a third party). However, the state did
    not raise this issue either below or on appeal, and the district court assumed in its decision
    denying Gonzales’s motion to suppress that Gonzales had a legitimate expectation of privacy in
    the place searched. Because such an assumption does not affect our holding in this case, we
    likewise assume--without deciding--that Gonzales had a legitimate expectation of privacy in the
    bedroom that was searched.
    3
    A third party may alternatively be found to have apparent authority to consent to a search
    when an officer reasonably, even if erroneously, believes, based on the totality of the
    circumstances known at the time, that the third party possessed authority to consent. Randolph,
    
    547 U.S. at 109
    ; Illinois v. Rodriguez, 
    497 U.S. 177
    , 188-89 (1990); Brauch, 
    133 Idaho at 219
    ,
    
    984 P.2d at 707
    ; Aschinger, 149 Idaho at 57, 232 P.3d at 835.
    4
    bedroom.” Thus, the tenant’s consent was all that the officer needed to lawfully search the
    bedroom. These findings were supported by substantial evidence in the record, including the
    tenant’s statement to the officer indicating that Gonzales stayed in the tenant’s bedroom
    occasionally and that, when Gonzales did so, the tenant slept on the couch. There was also no
    evidence that she was excluded from her bedroom when Gonzales was staying at the residence.
    Moreover, Gonzales was, at all relevant times, present and aware of the tenant’s consent to
    search the residence. Assuming that he had the authority to do so, Gonzales did not revoke the
    tenant’s consent or object to the officer’s subsequent search of the first bedroom. As a result, the
    search was based on consent from a third party with common authority over the place to be
    searched and was, therefore, valid.
    B.     Investigative Detention
    A seizure that implicates the Fourth Amendment occurs when an officer, by means of
    physical force or show of authority, restrains a citizen’s liberty. State v. Ferreira, 
    133 Idaho 474
    , 479, 
    988 P.2d 700
    , 705 (Ct. App. 1999); State v. Fry, 
    122 Idaho 100
    , 102, 
    831 P.2d 942
    ,
    944 (Ct. App. 1991). A seizure may take the form of either an arrest or an investigative
    detention. State v. Stewart, 
    145 Idaho 641
    , 644, 
    181 P.3d 1249
    , 1252 (Ct. App. 2008). An
    investigative detention is a seizure of limited duration done to investigate suspected criminal
    activity and does not offend the Fourth Amendment if the facts available to the officer at the time
    gave rise to reasonable suspicion to believe that criminal activity was afoot. Terry v. Ohio, 
    392 U.S. 1
    , 30 (1968); Ferreira, 
    133 Idaho at 479
    , 988 P.2d at 705; State v. Dice, 
    126 Idaho 595
    ,
    599, 
    887 P.2d 1102
    , 1106 (Ct. App. 1994); State v. Knapp, 
    120 Idaho 343
    , 347, 
    815 P.2d 1083
    ,
    1087 (Ct. App. 1991). Reasonable suspicion must be based on specific, articulable facts and the
    rational inferences that can be drawn from those facts. State v. Danney, 
    153 Idaho 405
    , 409-10,
    
    283 P.3d 722
    , 726-27 (2012); State v. Bishop, 
    146 Idaho 804
    , 811, 
    203 P.3d 1203
    , 1210 (2009).
    The reasonableness of the suspicion must be evaluated upon the totality of the circumstances at
    the time. United States v. Cortez, 
    449 U.S. 411
    , 417-18 (1981); Bishop, 
    146 Idaho at 811
    , 
    203 P.3d at 1210
    ; State v. Perez-Jungo, 
    156 Idaho 609
    , 615, 
    329 P.3d 391
    , 397 (Ct. App. 2014).
    Here, Gonzales was detained while the officer obtained a warrant to search the rest of the
    residence. The officer had reasonable suspicion to believe that criminal activity involving illegal
    narcotics was afoot and that Gonzales was likely involved with that criminal activity, thereby
    5
    justifying Gonzales’s investigative detention. A known citizen-informant advised the officer,
    based on the informant’s first-hand knowledge, that an individual identified as “Joe” would be at
    the residence and that this individual purchased, used, and sold controlled substances. Unlike
    anonymous sources, tips made by known citizen-informants are presumed reliable because the
    informant’s reputation may be readily assessed and the informant may be subject to criminal
    liability if the reported information is untruthful. Bishop, 
    146 Idaho at 812
    , 
    203 P.3d at 1211
    .
    When the officer first encountered him, Gonzales identified himself as “Joe” and matched the
    description of the individual identified as “Joe” by the known citizen-informant. Gonzales also
    acknowledged that he was temporarily staying at the residence. Moreover, a tenant of the
    residence confirmed that Gonzales was temporarily sleeping in the first bedroom, which was
    normally the tenant’s room, and that she was sleeping on the couch while he was there.
    Gonzales was seen coming from the area of the first bedroom when the officers arrived, and
    Gonzales returned to that same area to retrieve his belongings.        While searching the first
    bedroom from which Gonzales had just emerged, the officer discovered paraphernalia hidden
    underneath a pair of large pants that the officer described as too big to be worn by anyone in the
    residence except Gonzales. When confronted with the paraphernalia, Gonzales changed his story
    and denied that he was staying at the residence. Thus, the facts known to the officer at the time
    of the investigative detention gave rise to reasonable suspicion of criminal activity involving
    illegal drugs and that Gonzales was participating in that illegal activity.      As a result, the
    investigative detention was lawful.
    IV.
    CONCLUSION
    Gonzales has failed to establish that either the consent search or investigative detention
    violated his constitutional rights. Therefore, the district court did not err in denying Gonzales’s
    motion to suppress.     Accordingly, Gonzales’s judgment of conviction for possession of a
    controlled substance and unlawful possession of a firearm by a felon is affirmed.
    Judge GUTIERREZ and Judge GRATTON, CONCUR.
    6