State v. Cole

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48645

STATE OF IDAHO, )
) Filed: February 9, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
KAYCEE CLAIR COLE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Franklin County. Hon. Mitchell W. Brown, District Judge.

Judgment of conviction for possession of a controlled substance, affirmed.

Pitcher & Holdaway; Ryan L. Holdaway, Logan, Utah, for appellant. Ryan L.
Holdaway argued.

Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney
General, Boise, for respondent. Andrew V. Wake argued.
________________________________________________

LORELLO, Chief Judge
Kaycee Clair Cole appeals from a judgment of conviction for possession of a controlled
substance. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
An officer stopped Cole one evening for traffic offenses and obtained his driver’s license,
registration, and proof of insurance. After checking Cole’s identification against law enforcement
databases, the officer returned Cole’s documents to him. Cole then apologized for his driving
pattern, indicating that he would “be more careful.” The officer responded by saying, “Yeah,
you’re good,” and then asked whether he could “talk to [Cole] for a second?” Cole agreed and
conversed with the officer about Cole’s reputed involvement with controlled substances.

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Eventually, Cole consented to a search of his vehicle, which yielded a methamphetamine pipe
made from a light bulb.
The State charged Cole with possession of methamphetamine. I.C. § 37-2732(c)(1). Cole
moved to suppress the evidence obtained during the roadside search and an alleged subsequent
search at the local sheriff’s office.1 The district court denied the motion, concluding Cole had:
(1) authorized the roadside search of his vehicle during a consensual encounter with the officer
after the conclusion of the traffic stop; and (2) presented no argument or evidence regarding the
alleged second search. Cole entered a conditional guilty plea, reserving the right to appeal the
denial of his motion to suppress. Cole 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,
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
Cole argues that the district court erred by denying his motion to suppress because an
unlawful extension of the traffic stop tainted his consent to the roadside search of his vehicle.2 The

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It is unclear whether the possession of methamphetamine charge arose from
methamphetamine residue on the light bulb or other controlled substances discovered during the
alleged second search of his vehicle.
2
Cole’s opening brief contains no argument or authority asserting that the district court erred
by denying his motion to suppress in relation to the alleged second search of his vehicle at the
sheriff’s office. Despite acknowledging the State’s argument that this defect resulted in the waiver
of any issue related to the alleged second search, Cole’s reply brief contains no substantive

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State responds that the district court correctly determined that Cole authorized the search during a
consensual encounter with the officer after the traffic stop concluded. We hold that Cole was not
detained when he consented to the search of his vehicle and, therefore, has failed to show error in
the denial of his motion to suppress.3
Cole acknowledges that his argument turns on whether the traffic stop transformed into a
consensual encounter when the officer returned Cole’s documents, said he was “good,” and asked
to speak with him briefly. A traffic stop may evolve into a consensual encounter if the officer
returns the driver’s license, registration and insurance documents, and makes no further show of
authority that would convey a message that the individual is not free to go. State v. Roark, 140
Idaho 868, 870, 103 P.3d 481, 483 (Ct. App. 2004). The ultimate focus of the inquiry is whether,
under the totality of the circumstances, “a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436 (1991).
The district court concluded that Cole voluntarily authorized the search of his vehicle
during a consensual encounter with law enforcement after the conclusion of a lawful traffic stop.
In reaching this conclusion, the district court found that the officer lawfully stopped Cole for
speeding and failing to maintain his lane. After obtaining Cole’s license, registration, and proof
of insurance, and confirming the validity of Cole’s license, the officer returned Cole’s documents
and the following exchange occurred:
Officer: Alright [Cole], here’s your stuff, man.
Cole: [S]orry about that officer, I’ll be more careful.
Officer: Yeah, you’re good. Um, can I talk to you for a second?

response. Consequently, Cole has waived any issue related to the alleged second search. See State
v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
3
Cole’s statement of issues presented on appeal indicates that his “detention was
unconstitutionally prolonged under the Fourth Amendment . . . and pursuant to Article I,
Section 17 of the Idaho Constitution.” However, Cole 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, the Court will rely on judicial interpretation
of the Fourth Amendment in its analysis of Cole’s claims. See State v. Schaffer, 133 Idaho 126,
130, 982 P.2d 961, 965 (Ct. App. 1999).

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The district court further found that Cole verbally agreed to the officer’s request, spoke with the
officer about Cole’s alleged involvement with controlled substances, and then consented to a
search of his vehicle. The search yielded a methamphetamine pipe made from a light bulb.
Although the emergency lights on the officer’s patrol vehicle remained activated when Cole agreed
to talk to the officer and consented to the search of the vehicle, the district court determined that
this did not “interject an assertion of authority” into the officer’s exchange with Cole, which
otherwise “clearly demonstrated” the investigatory detention was complete and that “Cole was
free to go about his business.” In support of this determination, the district court interpreted the
words “alright” and “you’re good,” in conjunction with returning Cole’s documents, as
“dismissive and concluding in nature,” signifying the conclusion of the traffic stop. The district
court further reasoned that the emergency lights remained on for “safety purposes” as it would
“seriously jeopardize the safety of both [the officer] and Cole” to conduct a search at night with
the lights off. The district court concluded that “a reasonable person in Cole’s position would have
interpreted [the officer’s] brief comments, casual demeanor, non-aggressive and conversational
tone as an invitation to engage in further discussion.” Consequently, the district court found the
traffic stop had “transformed into a consensual encounter” when Cole authorized the search of his
vehicle.
Cole argues that his detention continued beyond the return of his documents and the
officer’s request to speak with Cole further because the officer’s “series of ambiguous
statements . . . was simply not clear enough to overcome the show of authority exhibited by the
officer’s overhead lights” and close proximity to Cole’s vehicle while requesting permission to
search. We disagree.
An officer’s continued use of the emergency lights on a patrol vehicle after initiating a
seizure generally suggests that the seizure is ongoing. See State v. Gutierrez, 137 Idaho 647, 651,
51 P.3d 461, 465 (Ct. App. 2002). That does not, however, necessarily mean that a traffic stop
cannot transform into a consensual encounter while a patrol vehicle’s lights remain activated. See
Roark, 140 Idaho at 871, 103 P.3d at 484. According to Cole, State v. Henage, 143 Idaho 655,
659, 644, 152 P.3d 16, 20, 25 (2007) (plurality), and Roark require officers to expressly instruct
drivers using “clear, unambiguous, and unequivocal” language that they are no longer detained to
terminate a traffic stop while the lights of a patrol vehicle remain activated. Cole’s argument

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mistakes a condition these cases identify as sufficient to terminate a traffic stop for one that is
necessary. An express statement by an officer that a detainee is free to go is unnecessary to
terminate a traffic stop. See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996) (“emphasizing the
fact-specific nature of the reasonableness inquiry” under the Fourth Amendment and concluding
it would “be unrealistic to require police officers to always inform detainees that they are free to
go before a consent to search may be deemed voluntary”). We do not read either Henage or Roark
as requiring more of officers to terminate a traffic stop while the lights of a patrol vehicle remain
activated. Rather, the cases recognize that no reasonable person who was unequivocally instructed
that he or she may go would disregard such a statement due to the emergency lights on a patrol
vehicle--not that such unequivocal instruction is necessary to terminate a traffic stop. See Henage,
143 Idaho 655, 152 P.3d 16; Roark, 140 Idaho at 871, 103 P.3d at 484.
Cole also argues the officer’s use of the words “alright” and “you’re good” were ambiguous
and would not have informed a reasonable person the stop had concluded, but Cole makes this
argument by considering each statement in isolation and disregarding certain findings by the
district court. According to Cole, the officer’s use of “alright” was “a salutary phrase” to get
Cole’s attention that “did not purport to have to do with the entirety of the stop nor would any
listener assume as much.” Cole further contends that the officer’s statement “you’re good” was
only a response to Cole’s apology for his driving pattern and that nothing could be gleaned from
the statement other than that he “was not necessarily in trouble” for traffic violations. Parsing the
officer’s exchange with Cole in this manner fails to consider the officer’s statements in light of the
totality of the circumstances. When considered in context, the officer’s statements indicate that
the stop had concluded. The officer’s statement “you’re good” came shortly after Cole received
his documents back from the officer and was followed by a request for permission to talk further.
Cole acknowledges that the officer’s indication that Cole was “good” indicated that he was not “in
trouble” for his traffic violations. In other words, the statement indicated that the officer did not
intend to seek to penalize Cole for his driving. The officer’s subsequent request for permission to
converse further would make little sense to a reasonable person, unless he or she were free to
decline and terminate the encounter. A reasonable person stopped for traffic offenses who just
obtained his or her documents back from an officer, received an indication that no penalty for the
announced purpose of the stop (i.e., the traffic offense) was forthcoming, and was then asked for

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permission to talk further would believe the traffic stop had concluded, despite the continued
activation of the patrol vehicle’s emergency lights.4 See United States v. Gigley, 213 F.3d 509,
514 (10th Cir. 2000) (holding that, after termination of a traffic stop, a defendant’s decision to
grant an officer permission to “ask [the defendant] some questions” initiated a consensual
encounter).
Cole’s contention that a reasonable person would not have felt free to leave due to the
officer’s allegedly close physical proximity is similarly unavailing. The district court did not find
that the officer blocked Cole from leaving, touched his vehicle, or engaged in any other coercive
conduct.5 The absence of such findings, despite the assertion below that the officer was unusually
close to Cole’s vehicle, suggests that the district court rejected Cole’s version of the facts regarding
the officer’s proximity to Cole’s vehicle. That the district court found that the officer was
“extremely polite and courteous throughout the duration of the detention and consensual
encounter” further supports this conclusion. Moreover, the officer’s bodycam video, which was
admitted during the suppression hearing as an exhibit, does not indicate that the officer stood so
close to the driver’s side of Cole’s vehicle that “it would have been reckless for [him] to attempt
to leave” as he asserts, much less decline the officer’s request to talk further. Even considered in
combination with the emergency lights, the officer’s natural proximity to Cole’s vehicle did not
constitute a show of authority that continued his detention beyond the return of his documents.

4
Moreover, even if the traffic stop had not terminated, it is not clear that Cole’s consent
would have occurred during an unlawful extension of the stop. Officers can request permission
for and conduct the search of a vehicle during an investigatory detention without violating the
Fourth Amendment. See State v. Silva, 134 Idaho 848, 853, 11 P.3d 44, 49 (Ct. App. 2000). This
principle logically extends to an officer obtaining a detainee’s consent to converse about subjects
unrelated to the underlying purpose of a traffic stop.
5
The absence of such a factual finding distinguishes this case from State v. Moore, 154 P.3d
1 (Kan. 2007), which Cole cites in support of his argument that he was subject to a continued
detention. In Moore, the Kansas Supreme Court concluded that Moore’s detention continued
beyond the return of his license and registration while a physically imposing officer, supported by
a second armed officer, “alternat[ed] between leaning on and nearly touching the frame” of
Moore’s vehicle. Id. at 9.

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In sum, the facts found by the district court, considered in light of the totality of the
circumstances, support the conclusion that the traffic stop transformed into a consensual encounter
during which Cole consented to a search of his vehicle. Accordingly, Cole has failed to show error
in the denial of his suppression motion.
IV.
CONCLUSION
The district court correctly concluded that Cole authorized a search of his vehicle during a
consensual encounter with an officer after the conclusion of a traffic stop. Consequently, Cole has
failed to show that his consent to search was tainted by an unlawful detention. Accordingly, Cole’s
judgment of conviction for possession of a controlled substance is affirmed.
Judge GRATTON and Judge BRAILSFORD, CONCUR.

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