1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47829

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

KARL ADRIAN BEST ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: May 6, 2021
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen , District Judge.
Judgment of conviction for possession of a controlled substance, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfield
, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

________________________________________________ HUSKEY, Chief Judge Karl Adrian Best appeals from his judgment of conviction for posses sion of a controlled
substance. Best alleges the district court erred in its partial denial of his motion to suppress because he was subjected to an unreasonable seizure prior to the drug d og’s positive alert on his ca r. Because Best was not seized prior to the positive alert , the district court did not err and the judgment of conviction is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND While on patrol shortly after midnight, Officer Mauri observed a white car drive p as t his patrol car and park on a street in a residential neighborhood. Officer Mauri park ed his pa trol car at least 100 feet away where he continue d to observe the car. Officer Mauri watched the driver exit the car, wander around its driver’s side, a nd walk away from it

. Officer Mauri found this2 behavior to be suspicious. Without activating his overhead lights or siren, Officer Mauri drove
closer and radioed dispatch to report that he was investigating a s uspicious car at that location.
Officer Mauri parked approximately tw enty

- five feet behind the car and approached on foot

. Using a flashlight, Officer Mauri looked in the car’s windows and observed a small butane torch, which he knew from training and experience is sometime s use d to ingest illegal dr ugs. Around this time
, the driver of the car, Best, approached and asked Officer Mauri what he was doing. Officer Mauri and Best engaged in conversation a few feet apart

. Officer Mauri asked Best
if the car was his, but before Best could answer Officer Mauri noticed an item on Best’s hip and
told Best not to reach for it. Around this time, Officer Knisley, a canine officer, arrived and Officer Mauri asked her to conduct a drug

- dog sniff of th e exterior of Best’s car. Best protested, telling the officers that they did not have his permission to execute a drug

- dog sniff. Officer Mauri ’s responses were “ok, well, you can explain that in court. ” “ Is that your vehicle? ” “ Whose vehicle is that? ” Best began t o walk away from the scene

. While Best w as walking away, Officer Mauri continued to ask questions, such as
, w hat Best w as d oing in the area and where he lived

. Best stopped briefly and
answered Officer Mauri ’s questions

. When Best began to walk away again, Officer Mauri asked “ok, where are yo u going now?” Best responded that it was none of Officer Ma u ri’s business . Best told Officer Mauri to “have a good day” and continued to walk away. At approximately this moment, the drug dog gave a positive alert on Best’s car. Officer Mauri told Best that he was no longer f ree to leave. When Best resisted and tried to walk away, Officer Mauri placed Best in handcuffs. During a subsequent search of the car, t he officers found a digital scale with a white, powdery residue, two baggies containing a whi te crystalline subst ance, and used syringes

. Officer
Mauri placed Best under arrest and co n ducted a search of his person. During this search, Officer
Mauri found a syringe plunger and asked Best if he was a Type A or a T ype B diabetic, believing
a diabet ic would know these were made up categories , while someone who used the plunger to ingest drugs may not. Best replied that he was a Type B diabetic. Officer Mauri proceeded to read Best his rights, pursuant to Miranda v. Arizona
, 384 U.S. 486 (1966) , and question Best about
what the officers found in his car. Best responded to the questions and acknowledged that the
officers would f ind methamphetamine in his car.3 The State charged Best with possession of a controlled substance and po ssession of drug

pa raphernalia. Best filed a motion to suppress, arguing that Officer Mauri : (1) unlawfully seized Best without reasonable suspicion prior to the drug

- dog alert on his car ; and (2) failed to administer
the Miranda warnings prior t o his custodial interrogation. The district court held a hearing on the motion, during whi ch Officer Mauri and Officer Knisley testified. At the close of the hearing, the district court orally found that the contact betwee n Officer Mauri and Best was consensual until
th e drug dog alerted on Best’s car. The district court also found that Best’s statements after he
was handcuffed
, but prior to the time Miranda warnings were issued, including Best’s response that he was a Type B diabetic, should be suppressed as Best’s sta tements were made during a custodial interrogation

. However, the district court found that Best’s statements made after he was given Miranda warnings were consensual. 1 Accordingly, the district court partially denied Best’s motion to suppress

. Subsequently, pursuant to a plea agreement, Best entered a conditional guilty plea to possession of a controlled substance, reserving the right to appeal the district court’s ruling on his motion to suppress and t he State dismissed the possessio n of drug p araphernalia charge. The district court sentenced Best to a unified sentence of four years, with two years determinate, suspended the sentence
, and placed Best on probation. Best timely appeals.
II.
STANDARD OF REVIEW The standard of review of a supp ression 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).

1 Best does not challenge the district court’s rulings regarding any of his statements.4 III.
ANALYSIS
Best does not challenge the district court’s factual findings, only the district cou rt’s legal
conclusion that Best w as not seized prior to the drug dog’s positive alert. As such, t he only issue on appeal is whether the contact between Best and Officer M auri prior to the positive drug

- dog
alert was consensual or whether Best had been seized. Best alleges the district court erred in finding that he was not seized prior to the drug dog alert. Best argues that a reasonable person
would not have felt free to leave the encounter given Officer Mauri ’s presence as a uniformed officer, use of a flashlight, close proximity to Best, command to not reach for the item on Best’s hip, statement that Best could explain his concerns about the use of a drug dog in court, and continuous questions when Best attempted to walk awa y from the scene

. In response, the State
contends that the district court did not err because Best was not seized prior to the drug d og’s positive alert on his car as evidenced by the lack of any display of authority or use of force restricting Best’s mov ement and the freedom with which Best moved around

. The Fourth Amendment to the United States Constitution, and its counterpart, Article I, Section 17 of the Idaho Constitution, guarantee the right of every citizen to be free from
unreasonable searches and seizures. However, not all encounters between the police and citizens involve the seizure of a person. Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968); State v. Jordan , 122 Idaho 771, 772, 839 P.2d 38, 39 (Ct. App. 1992). Only when an officer, by means of ph ysical force or show of authority, restrains the liberty of a citizen may a court conclude that a seizure has
occurred. State v. Fry , 122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App. 1991). A seizure does not occur simply because a police officer approach es an individual on the street or other public place, by asking if the individual is willing to answer some questions, or by putting forth questions if the individual is willing to listen. Florida v. Bostick , 501 U.S. 429, 434 (1991); Florida v. Royer
, 460 U.S. 491, 497 (1983). Unless and until there is a detention, there is no seizure within the meaning of the Fourth Amendment and no constitutional rights have been infringed. Royer , 460 U.S. at 498. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions and ask to examine identification. Fry , 122 Idaho at 102, 831 P.2d at 944. So long as police do not convey a message that compliance with their requests is required, the encounter is deemed consensual and no reasonable suspicion is required. Id.5 “ When a defendant seeks to suppress evidence that is alleged to have been obtained as a result of an illegal seizure, the defendant bears the burden of proving that a seizure occurred. ”
State v. Willoughby , 147 Idaho 4 8 2, 486, 211 P.3d 91, 95 (2009). The critical inquiry when determining whether an individual was seized is whether a reasonable person , accounting for all the surrounding circumstances, would have felt free to disregard the poli ce, decline the officer’s request, or otherwise termi nate the encounter. State v. Linenberger , 151 Idaho 680, 684, 263 P.3d 145, 149 (Ct. App. 2011) ; see also State v. Randle , 152 Idaho 860, 864, 276 P.3d 732, 736 (Ct. App. 2012) ( stating that “the critic al inquiry is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about his or her busines s”)

. When conducting this inquiry, a seizure may have occurred if an officer use d overhead lights or sirens , display ed a weapon, touched the individual, blocked the individual’s exit route, or use d language or a tone of voice that indicated the officer was compelling the individual’s compliance with his request s

. State v. Pieper , 163 Idaho 732, 734, 418 P.3d 1241, 1243 (Ct. App. 2018)

. Similarly, a seizure may have occurred if the threatening presence of several officers would indicate to a reasonable per son that he is not free to leave. Id. However, a n officer is permitted to take actions to aid the officer’s safety , without automatically transforming a consensual encounter into a seizure if, given the totality of the circumstances, a reasonable person would still feel free to end the encounter. For example, an officer may use a flashlight to illuminate an area, even by shining the light into a car occupied by individuals, without making an en counter a seizure

. Id. at 735, 418 P.3d at 1244 ; see Randle , 152
Idaho at 865, 276 P.3d at 737 ( noting that “ an officer is not constitutionally required to choose between a consensual encounter in the dark or turning on a spotlight and thereby effectuatin g a detention that may not be supported by reasonable suspicion ”)

. Similarly, in certain situations
, an officer may make requests of individuals without the request constituting a seizure. See State v. Wolfe , 160 Idaho 653, 656, 377 P.3d 1116, 1119 (Ct. App. 2016) (holding officer’s request for an individual to wait in his car because of safety concerns for the officer did not transform the encounter into seizure under totality of circumstances); see also State v. Zubizareta , 122 Idaho 823, 828, 839 P.2d 1237, 1242 (Ct. App. 1992) ( concluding that officer aski ng defendant to turn
off car’s motor did not constitute a seizure because it justifiably enhanced officer’s safety while minimally intruding on defendant’s freedom of movement )

.6 Here, given the totality of the circumstances, prior to the drug

- dog’s alert on Best’s c a r, not only would a reasonable person in Best’s position have felt free to end the encounter with
Officer Mauri , but Best, himself, f elt free to end the encounter and walk away

. Without activating
his overhead lights or siren s , Officer Mauri parked at least 100 feet away from Best’s car and
observed B est get out of his car, wander around it, and then walk away. Thereafter, without activating his overhead lights or sirens, Officer Mauri drove closer, parked his car twenty

- five feet

away , and approach ed the unoccupied car on foot . Officer Mauri was investigating when B est approached Officer Mauri at which time Officer Mauri asked Best “is this your vehicle?” Best’s behavior indicated that, at least at first, he desired to be involved in a conversation with Officer
Mauri

. During the ensuing ninety seconds
, Officer Mauri asked Best general questions and permitted him to w alk away from the area on multiple occa sions. Although Officer Mauri used a flashlight during the encounter and told Best to not reach for the item on his hip, a reasonable

person would have understood these circumstances related to Officer Mauri ’s safety concerns as it was dark outside, Offic er Mauri was the only officer at the scene at the time
, and Best approached with an unknown item on his hip . A reasonable person would have felt free to disengage from the

encounter , as Best did

. F u r ther
, Officer Mauri ’s statement that Best could explain his concern s with the use of the drug dog “in court” conveyed simply that if the drug dog alerted and the officers found drugs in the car, Best could raise his concerns related to the use of the drug dog in court

. Officer Mauri did not couple this statem ent with an action or statement that suggested that Best
was not free to leave t he scene at that point. The video footage from Officer Mauri’s body camera
shows that Best felt free to end the encounter and walk away as evidenced by the fact that he did

so several times. Finally, that Officer Mauri asked questions when Best began to walk away did

n ot indicate that Best was seized because it is appropriate for an officer to ask questions of an individual during a consensual encounter, even if no obvious cri minal activity is taking place

. See
Randle , 152 Idaho at 865

- 66, 276 P.3d at 737

- 38

. T aking into account all of the surrounding circumstances, there was no indication that
Officer Mauri conveyed to Best that he was not free to end the encounter

. Office r Mauri did not display weapons, physically touch Best, block any exit routes, explicitly or implicitly command Best to stay at the scene, or use language or a tone of voice to indicat e that Best was to comply
with any perceived demands. Best walked away from th e scene multiple times, thereby7 undermining any argument that he did not feel free to end the encounter

. Because Best was not seized until after the drug dog alerted on his car and Officer Mauri told Best that he was no longer
free to leave , and Best does not challenge any of the district court’s other findings of fact or conclusions of law, Best has failed to show the district court err ed in partially denying Best’s motion to suppress.
IV.
CONCLUSION Best was not seized prior to the drug dog’ s positive alert on Best’ s car. Accordingly, the
district court did not err in partially denying Best’s motion to suppress and the judgment of
conviction is affirmed. Judge GRATTON and Judge LORELLO CONCUR

.