1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34977

STATE OF IDAHO ,
Plaintiff-Respondent ,

v.

THERESE A. LOPEZ ,
Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2010 Unpublished Opini on No. 616

Filed: August 26, 2010

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Second Judicial District, Sta te of Idaho, Idaho County. Hon. John H. Bradbury , District Judge.

Order denying motion to suppress

, affirmed

.
Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appel late Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

______________________________________________ __ GRATTON, Judge

Theres e A. Lopez entered a conditional guilty plea to possession of a controlled

substance , Idaho Code § 37

- 2732

, reserv ing her right to appeal the denial of her motion to

suppress . We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On Oc tober 27, 2006, Officer Wilson stopped Lopez for speeding on U.S. 95 in Riggins,
Idaho. Lopez did not provide a driver ’ s license and

, rather than a registration

, she provided a car
rental agreement with another person ’s name listed as the authorized drive r. After some
questioning, Officer Wilson asked if he could search the vehicle . Lopez agreed to the search. A
glass pipe containing a white crystallized substance was found in the vehicle , and Officer Wilson
arrested Lopez for possess ion of a controlled substance

. In addition

, next to where Lopez was2

standing outside the vehicle

, Officer Wilson found a tin containing a baggie of
methamphetamine.
Lopez was charged with possess ion of a controlled substance, I.C. § 37

- 2732; possess ion
of drug parapherna lia, I.C. § 37

- 2734A(1); and driving without privileges , I.C. § 18

- 8001(1).
She moved to suppress the evidence discovered during the search of the vehicle and the tin
container. The district court denied the motion to suppress. P ursuant to a plea agreem ent, Lopez

entered a conditional ple a of guilty to possess ion of a controlled substance and reserv ed her right
to challenge the denial of the motion to suppress . T he State dismissed the remaining two
charges. Lopez appeals.

II.

DISCUSSION
Lopez argues that her consent to search the vehicle was coerced and the evidence
obtained from the search should have been suppressed. She also contends that the evidence
seized from the tin container was a result of the illegal vehicle search and must also be

suppre ssed. 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 co nstitutional 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 fac tual 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).

When the State ’ s justification for a warrantless search is that t he defendant gave consent,
the State must prove by a preponderance of the evidence that the consent was voluntary rather

than the result of duress or coercion, direct or implied. Schneckloth v. Bustamonte

, 412 U.S. 218

(1973)

. We stated the applicable an alysis in State v. Jaborra

, 143 Idaho 94, 137 P.3d 481 (Ct.
App. 2006):
The Fourth Amendment to the United States Constitution prohibits unreasonable searches. A search conducted by law enforcement officers without a warrant is per se unreasonable unless the State shows that it fell within one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Dominguez, 137 Idaho 681, 683, 52 P.3d 325, 327 (Ct. App. 2002). A search conducted with co nsent that was3

voluntarily given is one such exception. Schneckloth, 412 U.S. at 219 ; Dominguez, 137 Idaho at 683, 52 P.3d at 327. It is the State ’ s burden to prove, by a preponderance of the evidence, that the consent was voluntary rather than the resul t of duress or coercion, direct or implied. Schneckloth, 412 U.S. at 221 ; State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052, 1057 (2003); State v. Fleenor, 133 Idaho 552, 554, 989 P.2d 784, 786 (Ct. App. 1999); Dominguez, 137 Idaho at 683, 52 P.3d at 327. A voluntary decision is one that is “ the product of an essentially free and unconstrained choice by its maker.” Schneckloth, 412 U.S. at 225. See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961). An individual ’ s consent is involuntary, on the oth er hand, “ if his will has been overborne and his capacity for self

- determination critically impaired.” Id. In determining whether a subject ’ s will was overborne in a particular case, the court must assess “ the totality of all the surrounding circumstance s

- both the characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226

. Thus, whether consent was granted voluntarily, or was a product of coercion, is a factual determination to be based upon the surrounding circum stances, accounting for subtly coercive police questions and the possibly vulnerable subjective state of the party granting the consent to a search. Id. at 229 ; Hansen, 138 Idaho at 796, 69 P.3d at 1057; Dominguez, 137 Idaho at 683, 52 P.3d at 327. A dete rmination of voluntariness does not turn “ on the presence or the absence of a single controlling criterion.” Schneckloth, 412 U.S. at 226

. Factors to be considered include whether there were numerous officers involved in the confrontation, Castellon v. U nited States, 864 A.2d 141, 155 (D.C. 2004); United States v. Jones, 846 F.2d 358, 361 (6th Cir. 1988); the location and conditions of the consent, including whether it was at night, United States v. Mapp, 476 F.2d 67, 77

- 78 (2d Cir. 1973); whether the pol ice retained the individual ’ s identification, United States v. Chemaly, 741 F.2d 1346, 1353 (11th Cir. 1984); whether the individual was free to leave, Ohio v. Robinette, 519 U.S. 33, 39

- 40 (1996); Chemaly, 741 F.2d at 1353; State v. Gutierrez, 137 Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002); and whether the individual knew of his right to refuse consent, Schneckloth, 412 U.S. at 248

- 49 ; Chemaly, 741 F.2d at 1353; State v. Jones, 126 Idaho 791, 793, 890 P.2d 1214, 1216 (Ct. App. 1995). Although the p resence of multiple police officers does not, standing alone, establish coercion, and there is no requirement that police inform the individual that he is free to leave or that he has a right to refuse consent, these factors are nevertheless relevant when viewing the totality of the circumstances. See Robinette, 519 U.S. at 39

- 40 ; Schneckloth, 412 U.S. at 248 ; Jones, 846 F.2d at 361; Chemaly, 741 F.2d at 1353; Castellon, 864 A.2d at 155; Gutierrez, 137 Idaho at 651, 51 P.3d at 465; Jones, 126 Idaho at 793, 890 P.2d at 1216. The trial court is the proper forum for the “ careful sifting of the unique facts and circumstances of each case” necessary in determining voluntariness. Schneckloth, 412 U.S. at 233

. Even though the evidence may be equivocal and somewha t in dispute, if the trial court ’ s finding of fact is based on reasonable inferences that may be drawn from the record, it will not be disturbed on appeal. State v. Post, 98 Idaho 834, 837, 573 P.2d 153, 156 (1978), overruled on other grounds, State v. Bot telson, 102 Idaho 90, 625 P.2d 1093 (1981). In short,4

whether a consent to a search was voluntary is a question of fact, and our standard of review requires that we accept a trial court ’ s factual findings unless they are clearly erroneous. Hansen, 138 Id aho at 795, 69 P.3d at 1056; State v. McCall, 135 Idaho 885, 886, 26 P.3d 1222, 1223 (2001). Findings will not be deemed clearly erroneous if they are supported by substantial evidence in the record. State v. Benson, 133 Idaho 152, 155, 983 P.2d 225, 228 (Ct. App. 1999).

Id . at 97

- 98, 137 P.3d at 484

- 85

. At approximately 12:20 a

. m

. , Officer Wilson stopped Lopez for speeding

. As he exited

his patrol car, he observed Lopez making furtive movements. He requested Lopez to provide her
license and registrati on. Officer Wilson found it suspicious that Lopez stated she must have lost
her license at a previous stop
, but made no attempt to look for her license. By using her name

and birth date , he was able to discover her California license had been suspended. Also, rather
than providing registration for the vehicle , Lopez gave Officer Wilson a car rental agreement

with another person ’s name listed as the authorized driver. 1

Officer Wilson decided to investigate further and asked Lopez to step out of the vehi cle
to talk with him. Lopez explained she was returning from visiting her father in California , but
also stated she did not know her license had been suspended in California because she had not

been the re in awhile. Officer Wilson found her answers suspi cious

, asked her if there was
anything illegal in the vehicle

, and asked her if s he would mind if he performed a search of the

vehicle . She agreed to the search.

In the center consol e of the vehicle

, Officer Wilson located Lopez’s wallet containi n g her

dr iver’s license and he also found a pipe used for smoking methamphetamine. Officer Wilson
then arrested Lopez for possession of a controlled substance

, handcuffed her

, and placed her in
his patrol car. After resuming his search of the vehicle, he found a baggie, a scale, and another
pipe all containing methamphetamine residue.
Prior to searching the vehicle , Officer Wilson instructed Lopez to stand on the sidewalk

in front of the vehicle while he performed the search. During the search, he noticed that L opez

had moved off of the sidewalk and onto the grass. After he arrested Lopez and finish ed

search ing the vehicle

, Officer Wilson searched th e area of grass where Lopez was standing

.

1 The authorized driver testified at the suppression hearing that he gave Lopez permission to drive the rental car from Lewiston to California and back to visit her father. Therefore, the State did not dispute that Lopez had a reasonable expectation of privacy in the rental car.5

There he located a small tin container, inside of which was a baggie co ntaining
methamphetamines. Lopez denied that the container belonged to her

. Lopez argues the evidence found in the vehicle should be suppressed because her
consent was coerced and not voluntary. Lopez concedes the traffic stop was lawful and she gave

consent to the search . S he does not contend on appeal the stop was unreasonably extended. In
support of her coercion argument, Lope z points out that it was late at night, there was not much

traffic in the area, she was not free to leave, and the patrol c ar’s lights were flashing . Lopez
argues that the police video of the stop shows her to be nervous and upset

. Contrary to Lopez’s

assertion, the district court found “ Ms. Lopez did not appear frightened o r even particularly
upset.” Lopez agrees with the district court’s finding that Office r Wilson did not question her in
a menacing or inappropriate manner. The district court found that the request to search was “polite in content and civil in tone.” The district court stated that there was no indication of
improper pressure. Though it was nighttime, the stop occurred in Riggins and not a remote area.
Only one officer was on the scene and w hile Lopez was not free to leave, the fact that an
individual giving consent is the subject of an investigative det ention, although a relevant

consideration , d oes not itself demonstrate coerced consent. State v. Holcomb , 128 Idaho 296,

302

- 03, 912 P.2d 664, 670

- 71 (Ct. App. 1995). The district court found Lopez’s consent was
voluntary and not coerced

. The district c ourt’s finding s are supported by substantial and
competent evidence in the record and are not clearly erroneous

. Lopez also argues that the discovery of the tin container should be suppressed because it
was only discovered as a consequence of the illegal search of the vehicle . The State argues
Lopez abandoned the tin container and lost any reasonable expectation of privacy in the

container. Because this Court concludes the consent to search the vehicle was voluntary and
legal, these arguments need not b e addressed.

III.

CONCLUSION

Substantial and competent evidence supports the district court’s denial of the motion to
suppress. Thus, the district court’s denial of Lopez’s motion to suppress is affirmed.
Chief Judge LANSING and Judge GUTIERREZ, CONCUR.