1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45507

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

KIRSTE N M. SPIER

- TURNER ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: February 25, 2019
Karel A. Lehrman, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Cynthia K.C. Meyer , District Judge.

Orde r denying motion to suppress, reversed ; judgment of conviction for possession of methamphetamine, vacated and case remanded

. Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster
, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson , Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Chief Judge
K i rst e n M. Spi er

- Turner appeals from the judg ment of conviction for possession of methamphetamine. Spier

- Turner argues that the district court erred in denying her motion to

suppress evidence

. For the reasons set for th below, we reverse the district court ’ s order denying Spier

- Turner ’ s motion to suppress
, vacate the judg ment of conviction
, and remand

. I.
FACTUAL AND PROCEDURAL BACKGROUND Multiple Idaho State Police troopers arrived at a residen ce in Post Falls with a warrant to search the pre mises for drugs. When the troopers executed the warrant
, Spier

- Turner was an occupant inside the residence

. The troopers called the occupants out of the residence
, handcuffed each occupant , and had the occupants sit on the curb

. Spier

- Turn er exited the
residence with a purse over her shoulder. S he was handcuffed and led to the curb to sit with the2 other detained occupants

. The purse remained on her shoulder while she was handcuffed and
seated on the curb. Approximately forty minutes later, a trooper r emoved the purse from Spier

- Turner ’ s shoulder, placed the purse in the grass where Spier

- Turner had been sitting, and
walked her roughly twenty

- five feet away from the curb to the driveway to be interviewed. During the interview, Spier

- Turner told the trooper that she had a marijuana pipe located
in her bra. Thereafter , the officer led Spier

- T urner, still handcuffed and with the pipe in her bra
, back to the curb. The trooper moved the purse away from Spier

- Turner and the other detainees. Subsequently
, another trooper questioned Spier

- Turner about the pipe and released her from the handcuffs so she could retrieve the pipe from her bra

. Upon re ceiving the pipe and re

- secur ing the handcuffs, the trooper arrested Spier

- Turner for possession of parapherna lia and patted her
down for weapons

. Spier

- Turner was transported to the police station and her purse remained at the scene

. Later, a search of the purse at the scene revealed plastic baggies containing a white crystal residue, a tourniquet
, and multiple hypodermic needles

. The State charged Spier

- Turner with possession of methamphetamine in relation to the items found in the purse , Idaho Code § 37

- 2732 (c)(1) , and p ossession of drug paraphernalia in
relation to the pipe
, I.C. § 37

- 2734A (1)

. Spie r

- Turne r filed a motion to suppress the evidence found in her purse, arguing that the search of her purse was a violation of the Fourth
A mendment. During the hearing on the motion to suppress, the State argued that the search of the purse was either (1) constitutional under the warrant requirement because it was included in
the warrant to search the residence, or (2) a valid exception to the warrant requirement as a
search incident to lawful arrest

. The district court held that the search was not vali d pursuant to the warrant because the

warrant was never presented to the court , thus the cour t could not consider its scope. However,

a fter “ t urning to the issue of search incident to arrest
, ” the district court f ound that when Spier

- Turner admitted to possessing the marijuana pipe , the trooper had “ probable cause to arrest
her and to search her. ” Further, t he court found : [that the purse 

### ] w as subject to search. It was an item intimately involved with her, definitely within her wingspan at the point that she admitted that she was in possession of the marijuana pipe

.

. . . . Had the officer taken the purse to the Public Safety Building, it could have been searched as part of the booking procedure. The only question is whether the officers may search the purse at the location of arrest based upon the above case3 law. [ Referencing United States v. Edwards , 415 U.S. 800 (1974) and State v. Slaybaugh , 108 Idaho 551, 700 P.2d 954 ( Ct. App. 1985) .] The C ourt finds that a search is valid which is conducted at the place

-- had it been conducted at the place of arrest, it ’ s also valid when conducted later. The purse would have been subject to search at the place and time of her arrest. It could have been searched also at the jail. It was searched, the purse, at the place of arrest after the defendant was removed , and that does not offend the Fourth A mendment. After the motion to suppress was denied, t he case proceeded to trial and a jury convicted Spier

- Turner on both counts. Spier

- Turner was sentenced to a u nified term of three and one

- half

years with one and one

- half year s determinate. The district court suspended the sentence and placed Spier

- Turner on probation. Spier

- Turner timely appeals.
II.
ANALYSIS Spier

- Turner argues that the district court erred in denying her motion to suppress. 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 supp orted 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 credibil ity 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). Here, the district court held (1) the search of the purse was a warrantless search
, an d (2) the warrantless search was constitutional ly valid as a search incident to arrest

. N either party challenges the district court ’ s det ermination that the search of the purse was warrantless, thus we need not review that determination. State v. Zichko , 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
A. Search Incident to Arrest Spier

- Turner argues that the district court erred in determ ining that the search incident to arrest exception to the warrant requirement applied to the facts of this case. 1 A warrantless

1 The State indicated in its brief that we need not address the search incident to arrest exception as we could uphold the district court on the inventory search exception in so doing. The State indicates that it would “submit” on the search incident to arr est issue. While4 search is presumptively unreasonable unless it falls within certain special and well

- delineated exceptions to the warrant requi rement. Coolidge v. New Hampshire , 403 U.S. 443, 454

- 55 (1971); State v. Ferreira , 133 Idaho 474, 479, 988 P.2d 700, 705 (Ct. App. 1999). A search incident to a valid arrest is among those exceptions and, thus, does not violate the Fourth Amendment proscription against unreasonable searches. Chimel v. California
, 395 U.S. 752,
762

- 63 (1969); State v. Moore , 129 Idaho 776, 781, 932 P.2d 899, 904 (Ct. App. 1996). Pursuant to this exception, the police may search an arrestee incident to a lawful custodial arrest.
United States v. Robinson
, 414 U.S. 218, 235 (1973); Moore , 129 Idaho at 781, 932 P.2d at 904. The permissible scope and purposes of a search incident to an arrest is not limited to the removal of weapons but includes the discovery and seizure of evidence of crime and articles of value which, if left in the arrestee’s possessi on, might be used to facilitate his escape. Moore , 129 Idaho at 781, 932 P.2d at 904. Here, the district court found that the purse was within Spier

- Turner’s “wingspan” when the police developed probable cause to arrest her at the scene. Based in part u pon this factual finding, the district court made the legal conclusion that the purse (1) could have been searched
at the time of arrest ; and (2) could have been searched at the jail had it been transported with Spier

- Turner, thus it was valid to search th e purse “at the place of arrest after the defendant was removed.” We disagree. We conclude that the search of Spier

- Turner’s purse was not constitutionally reasonable as a se arch incident to arrest. First, Spier

- Turner challenges the district court’s fi nding of fact regarding the purse’s
location at the time of her confession. Specifically, she argues that the finding of fact that the purse was within Spier

- Turner’s “wingspan” when she admitted to possessing the marijuana pipe is not supported by substa ntial evidence. We agree. The undisp uted evidence presented below was that Spier

- Turner’s purse had been removed from her person when she was sitting on the
curb. In addition, t he State’s witnesses testified that the purse was twenty to twenty

- five feet away from Spier

- Turner when she admitted to the interviewing officer that she h ad a marijuana pipe in her bra. However, other factual findings that the district court made were based upon substantial evidence presented during the motion to suppress heari ng and are unchallenged on

submitting on an issue is not consistent with the Idaho Appellate Rules, see I.A.R. 35(b)(6), we nonetheless have addressed the merits of the issue.5 appeal. This includes the following findings: Spier

- Turner had been arrested for possession of paraphernalia in relation to the marijuana pipe that she admitted was in her bra, Spier

- Turner was transferred to jail and her purse re mained at the scene, and the purse was searched at the location of arrest after Spier

- Turner was transported to jail. Next, Spier

- Turner challenges the district court’s conclusions of law. Notwithstanding
the erroneous fact that the district court foun d (i.e.
, the location of the purse at the time of

c onfession) and accepting the district court’s other factual findings as true, a de novo review of the constitutional principles of the search incident to arrest exception to the warrant requirement provide s tha t the search was unreasonable. A search incident to arrest may include the arrestee’s person and the area “ within the arrestee’s immediate control ,” meaning “ the area from within which he might gain possession of a weapon or destructible evidence. ” State v. Lee , 162 Idaho 642, 650, 402 P.3d 1095, 1103 (2017) (quoting Chimel
, 395 U.S. at 762 )

. Here, Spier

- Turner’s purse was not on her person or within her immediate control when it was searched. S pier

- Turner was transported to the jail
, and the purse was searched at the location of her arrest after she had
been removed. Therefore, regardless of where the purse was located at the time of Spier

Turner’s confession, the search was not constitutional as a search incident to arrest.
B. Inventory Excepti on T he State argues a lt hough the “ district court did not use the words ‘ inventory exception, ’ it is clear from its reasoning and from the case law upon which it relied, that it found the search was authorized under the inventory exception because it was conducted as part of routine administrative procedure incident to incarceration. ” In response to this ar gument, Spier

- Turner
argues : (1) the State made no claims in the district court that the searc h of th e purse was an inventory search; (2) the district court did not decide that the inventory search exception applied in this case; and (3) even if we were to consider this newly raised argument, the inventory search exception does not apply. In a suppression case, a warrantless search remains unreasonable unless the State can prove the search either fell within a well

- recognized exception to the warrant requirement or was
otherwise reasonable under the circumstances. State v. Weaver , 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). In doing so, the State ha s the burden of proving the facts necessary to establish an exception to the warrant requirement. State v. Jenkins , 143 Idaho 918, 920, 155 P.3d 1157,
11 59 (2007). However, t he Idaho Supreme Court has made clear that “ issues not raised below6 will not be considered by this court on appeal, and the parties will be held to the theory upon which the case was presented to the lower court. ” State v. Garcia

- Rodriguez , 162 Idaho 271,
275 , 396 P.3d 700, 704 (2017) (quoting Heckman Ranches, Inc. v. State, By & Through Dep ’ t of
Pub. Lands , 99 Idaho 793, 799

- 800, 589 P.2d 540, 546

- 47 (1979) )

. O n a suppression issue
, the
State is limited to arguing on appeal the exceptions to the warrant requir ement that were presented in the district court.
T he only exception to the warrant requirement that the State argued below was the search incident to arrest exception

. In support of its theory, the State cited to various case law including Slaybaugh , 108 Idaho at 551 , 700 P.2d at 954 , and Edwards
, 415 U.S. at 800. Subsequently, the
district court cited to the above case law and adopted the State ’ s argument that the search
incident to arres t e xception justified the search

. No w, the State asks this C ourt to conclude that
, based on the cases cited by the district court, the district court impliedly held that t he inventory exception applied. We decline to do so

. The State misconstrues the district court ’ s holding. The
district court turned to the issue of search incident to arrest and found that the search was justified under that theory

. T he State did not argue below , and the district court did not find, that the inventory exception applied

. Because the inventory exception to the warrant require ment is

not preserved for appeal
, w e decline to address this newly raised argument on appeal

. Garcia

- Rodriguez , 162 Idaho at 275 , 396 P.3d at 704. There fore, we conclude that the distric t court erred in denying Spie r

- Turner ’ s motion to suppress.
III.
CONCLUSION The district court erred in determining that the search incident to arrest exception justified
the warrantless search of Spier

- Turner’ s purse

. Additionally, w e will not consider the State ’ s argument that the inventory exception applies as it w as not preserved for appeal. Therefore, the
district court ’ s order denying Spier

- Turner ’ s motion to sup press is reversed, and the judg ment of conviction for possession of methamphetamine is vacated and the case remanded

. Judge HUSKEY and Judge LORELLO CONCUR

.