State v. Pen

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49889

STATE OF IDAHO, )
) Filed: January 31, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
RACHEL COLLEEN PEN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Richard S. Christensen, District Judge.

Order denying motion to suppress and judgments of conviction, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Kimberly A. Coster, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent.
________________________________________________

HUSKEY, Judge
Rachel Colleen Pen appeals from her judgments of conviction for possession of a
controlled substance and possession of drug paraphernalia. Pen argues the district court erred in
denying her motion to suppress evidence during an unlawful seizure, thus, violating her
constitutional rights provided by the Fourth Amendment to the United States Constitution. Pen’s
initial encounter with law enforcement was consensual, and she was not seized until the officer
had probable cause for the seizure. The order denying Pen’s motion to suppress and her judgments
of conviction are affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
While on patrol one evening, Officer Debias noticed a small four-door vehicle, with a
driver inside, parked in a high-drug activity area. Because the vehicle was parked in a high-drug

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activity area, Officer Debias checked on the occupant of the vehicle. Officer Debias parked his
patrol vehicle about twenty feet away in a separate parking stall. When he approached the vehicle,
the driver’s side window was down, and Pen, the driver, was sitting in the driver’s seat eating. No
one else was in the vehicle. At the time Officer Debias contacted Pen, he did not see any potential
criminal activity occurring. Officer Debias contacted Pen and told her the area in which she was
parked is a high “drug activity area,” so he “checks on people, [to] make sure everybody’s all
right.” Pen responded that she was eating lunch while on a break from work. Officer Debias, in
a conversational tone, asked Pen questions about her job, to which she responded.
Officer Debias and Pen talked for about ninety seconds, at which time Officer Bangs
arrived with a drug dog. Officer Bangs parked some distance away from Pen’s vehicle. Neither
officer’s vehicle was parked in a manner that would block Pen’s vehicle. Neither patrol vehicle
had its emergency lights activated. Both officers had service weapons, were in uniform, and used
flashlights. Officer Bangs deployed his drug dog while Officer Debias and Pen were talking.
Within approximately thirty seconds of Officer Bangs’ arrival, and while Officer Debias and Pen
were still talking, Officer Bangs informed Officer Debias that the drug dog alerted on Pen’s vehicle
for a controlled substance. Officer Debias then told Pen that he would be searching her vehicle.
After asking Pen to step out of the vehicle, Officer Debias searched Pen’s vehicle and found drug
paraphernalia. Pen was arrested and disclosed she had drugs on her person.
Pen was charged with one count of possession of a controlled substance, heroin, Idaho
Code § 37-2732(c)(1), for drugs found in the vehicle, one count of possession of a controlled
substance, methamphetamine, I.C. § 37-2732(c)(1), for drugs found on her person, and possession
of drug paraphernalia, I.C. § 37-2734A(1). Pen filed a motion to suppress the evidence, arguing
the initial encounter was an unconstitutional seizure. Officers Bangs and Debias testified at a
hearing on the motion. After listening to testimony and argument, the district court found the
encounter between Officer Debias and Pen was consensual and Pen was not seized until the drug
dog alerted. As a result, the district court denied the motion to suppress.
Subsequently, upon motion by the prosecutor for insufficient evidence, the district court
dismissed the possession of heroin charge. Pen entered a conditional guilty plea to the remaining
charges, reserving her right to appeal. Pen appeals from her judgments of conviction, asserting
the district court erred in denying her motion to suppress.

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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
At issue in this case is whether Pen was seized prior to the drug-dog alert. Pen argues she
was seized during her initial encounter with Officer Debias, or in the alternative, when Officer
Bangs arrived and stood with the dog at her vehicle’s passenger side window. Pen asserts that
because she was subject to an illegal seizure and search, the exclusionary rule requires that all the
evidence obtained from the search be suppressed, her conviction be vacated, and her case be
remanded. The State argues the interaction between Officer Debias and Pen was consensual and
Pen was not seized until Officer Debias asked her to step out of the vehicle after the drug dog
alerted on her vehicle.
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 physical
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 approaches 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).

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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. “[P]olice have the
right to approach a parked vehicle and ask the occupants questions, even if no obvious criminal
activity is afoot.” State v. Randle, 152 Idaho 860, 865-66, 276 P.3d 732, 737-38 (Ct. App. 2012);
see State v. Zubizareta, 122 Idaho 823, 827, 839 P.2d 1237, 1241 (Ct. App. 1992).
“Examples of circumstances that might indicate a seizure, even where the person did not
attempt to leave, would be the threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer’s request might be compelled.” State v. Pieper,
163 Idaho 732, 734, 418 P.3d 1241, 1243 (Ct. App. 2018) (quoting United States v. Mendenhall,
446 U.S. 544, 554 (1980)). Other situations where a seizure has been found include when officers
activate overhead emergency lights or block a vehicle’s exit route. State v. Willoughby, 147 Idaho
482, 487-88, 211 P.3d 91, 96-97 (2009); Pieper, 163 Idaho at 734, 418 P.3d at 1243; Fry, 122
Idaho at 103, 831 P.2d at 945. However, officers’ use of flashlights has not been held to make an
encounter more intrusive. State v. Baker, 141 Idaho 163, 165, 107 P.3d 1214, 1216 (2004); Pieper,
163 Idaho at 735, 418 P.3d at 1244.
This Court held in Pieper that a defendant was not seized when officers parked their patrol
vehicle elsewhere in a parking lot, approached the defendant’s vehicle on foot from either side of
the vehicle, and shined flashlights into the interior of the defendant’s vehicle. Pieper, 163 Idaho
at 735, 418 P.3d at 1244. The Pieper Court found that because officers did not block the
defendant’s vehicle, activate their patrol vehicle’s overhead emergency lights, display their
weapons, make any physical contact with the defendant, or use a tone of voice indicating
compliance with their requests might be compelled, the initial encounter was consensual. Id. Only
when an officer observed contraband in plain view inside the defendant’s vehicle did the encounter
become a seizure. Id.
Pen argues she was seized without reasonable suspicion before the drug-dog alert. Pen
asserts the circumstances of her encounter with Officers Debias and Bangs, considering that

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neither officer told Pen she was free to leave, would convey to any reasonable person she was not
free to leave. To support her argument, Pen points to the fact that she was alone at night in a nearly
empty parking lot when an officer continuously shined his flashlight on her face and person while
talking with her about drug activity and asking her questions. Additionally, Pen argues the arrival
of the second patrol vehicle and Officer Bangs’ “swift, unambiguous actions” targeting Pen with
his drug dog would convey to any reasonable person they were not free to ignore the presence of
the officers and simply leave. Pen argues having one officer on each side of her vehicle, and their
targeted conduct, would have communicated to any reasonable person that she was required to
remain on the scene.
The district court found the officers did not seize Pen, and the encounter was consensual
until the drug-dog alert. The court stated:
In this case, taking into account all of the facts, that being that the encounter
was initially consensual and that the officers made no commands to the defendant,
that again the tone was not commanding, defendant was merely sitting in her car
and eating her lunch, the Court finds that the majority of Idaho case law allows law
enforcement conduct similar to this in the case and finds that such encounters are
consensual rather than seizures.
The district court further stated:
That is what the Court finds here, that it was not the case that Ms. Pen was
seized prior to the drug dog alerting on the car. Neither officer had displayed [his]
weapons or made any command to the defendant before the alert.
We agree with the district court. In this case, both officers parked their patrol vehicles
away from Pen, did not physically block her vehicle, did not activate their patrol vehicles’
overhead emergency lights, or display any weapons. Next, Officer Debias’s conversational tone
and use of a flashlight did not make the interaction intrusive or a seizure. Likewise, Officer Debias
informing Pen about known drug activity in the area did not transform the otherwise consensual
contact into a seizure. When speaking with a citizen during a consensual encounter, “[s]o 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.” Fry, 122 Idaho at 102, 831 P.2d at
944. In this case, Officer Debias merely informed Pen why he was speaking with her and followed
up with unrelated questions about her work. Likewise, Officer Bangs’ arrival and deployment of
the drug dog did not transform the encounter into a seizure because the mere presence of multiple
officers is insufficient to show a seizure occurred. See Pieper, 163 Idaho at 735, 418 P.3d at 1244.

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The district court did not err in concluding the encounter between Officer Debias and Pen
was consensual. Thus, Pen was not seized until Officer Debias informed her the drug dog alerted
on her vehicle because it was only then that she was no longer free to leave. A reliable drug-dog’s
alert on the exterior of a vehicle, standing alone, is sufficient to establish probable cause for a
warrantless search of the interior. State v. Anderson, 154 Idaho 703, 706, 302 P.3d 328, 331
(2012). Thus, the officers had probable cause to search the interior of Pen’s vehicle and, as a
result, the evidence was not illegally obtained. Therefore, the district court did not err in denying
Pen’s motion to suppress.
IV.
CONCLUSION
The encounter between the officers and Pen was consensual and, thus, was not a seizure
under the Fourth Amendment. When the drug dog alerted on Pen’s vehicle, the officers had
probable cause to search the interior of her vehicle. Therefore, we affirm the district court’s order
denying Pen’s motion to suppress and her judgments of conviction.
Chief Judge GRATTON and Judge LORELLO CONCUR.

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