State v. MORAN-SOTO

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36166

STATE OF IDAHO, )

) 2010 Opinion No. 76

Plaintiff-Respondent, )

) Filed: November 22, 2010

v. )

) Stephen W. Kenyon, Clerk

ROBERTO MORAN-SOTO, )

)

Defendant-Appellant. )

)

Appeal from the District Court of the Third Judicial District, State of Idaho,

Canyon County. Hon. Gregory M. Culet, District Judge.

Judgment of conviction for possession of a controlled substance with intent to

deliver, affirmed.

Molly J. Huskey, State Appellate Public Defender; Sara B. Thomas, Chief,

Appellate Unit, Boise, for appellant. Sara B. Thomas argued.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney

General, Boise, for respondent. Mark W. Olson argued.

______________________________________________

MELANSON, Judge

Roberto Moran-Soto appeals from his judgment of conviction for possession of a

controlled substance with intent to deliver. Specifically, Moran-Soto challenges the district

court’s denial of his motion to suppress. The state asserts that Moran-Soto’s appeal should be

dismissed because Moran-Soto has absconded from probation and remains a fugitive from

justice. For the reasons set forth below, we deny the state’s motion to dismiss and affirm Moran-

Soto’s judgment of conviction.

I.

FACTS AND PROCEDURE

Two police officers entered a tavern and noticed a napkin on the bar, which looked like it

contained plastic bags. An officer approached the bar, opened the napkin, and discovered what

appeared to be bindles of methamphetamine inside. The officers then told everyone in the tavern

to stay where they were and began to question the bartender, who became unruly and refused to

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cooperate with police. The officers handcuffed the bartender and began to question a nearby

man at the bar, who admitted that the drugs were his. The man claimed that Moran-Soto, who

was also seated at the bar, had earlier attempted to sell him drugs.

An officer then began to question Moran-Soto in English. First, the officer asked Moran-

Soto to provide his identification. Moran-Soto handed the officer an identification card from

Mexico, which the officer used to run a warrant check through dispatch. After doing so, the

officer set Moran-Soto’s identification card on the bar. The officer then asked Moran-Soto if he

had anything illegal on his person, and Moran-Soto answered that he did not and then told the

officer to check for himself. The officer declined, being wary of reaching into Moran-Soto’s

pockets due to the possibility of needles being present, but he asked Moran-Soto to empty his

pockets. Moran-Soto complied and emptied the contents of his pockets onto the bar. The officer

again asked if Moran-Soto possessed anything illegal, and Moran-Soto raised his arms and said,

“Check.” The officer reached into Moran-Soto’s pocket and located a bindle of what appeared to

be methamphetamine.

The officer placed Moran-Soto in handcuffs and began to read him his Miranda1 rights.

Moran-Soto replied that he did not understand what the officer was saying. The officer asked the

owner of the tavern to translate the Miranda rights into Spanish for Moran-Soto. Thereafter,

Moran-Soto admitted to the officers that the bindle of drugs from his pocket belonged to him.

Moran-Soto was charged with possession of a controlled substance with intent to deliver.

I.C. § 37-2732(a)(1)(A). Moran-Soto filed a motion to suppress the verbal and physical evidence

obtained by the officers in the incident. Following a hearing, the district court denied the motion

to suppress the physical evidence, but granted the motion with regard to Moran-Soto’s

statements made after his arrest as having been elicited in violation of Miranda. Moran-Soto

entered a conditional guilty plea, reserving the right to appeal the denial of his motion to

suppress. The district court sentenced Moran-Soto to a unified term of ten years, with a

minimum period of confinement of three years, but suspended Moran-Soto’s sentence and placed

him on probation for five years. Moran-Soto appeals.

The state filed a motion to dismiss Moran-Soto’s appeal, arguing that Moran-Soto had

absconded from supervision because he had been deported and failed to file written reports with

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See Miranda v. Arizona, 384 U.S. 436 (1966).

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his probation officer. Moran-Soto, through counsel, filed an objection to the state’s motion,

asserting that Moran-Soto is not a typical fugitive from justice who should be punished by the

dismissal of his appeal.

II.

ANALYSIS

There are two issues currently before this Court. First, we will address the state’s motion

to dismiss. Second, this Court will address the district court’s denial of Moran-Soto’s motion to

suppress.

A. Motion to Dismiss

Moran-Soto was sentenced on January 16, 2009. The district court did not issue Moran-

Soto’s written judgment of conviction and order suspending his sentence until February 10,

2009. The judgment included probation terms requiring Moran-Soto to submit a written report

to his probation officer every month and to contact the Department of Correction within five

days of his re-entry into the United States. On March 12, 2009, Moran-Soto’s probation officer

filed a report of probation violation in the district court, stating that Moran-Soto had been

deported and failed to file a truthful written report every month as required by his terms of

probation. The report also indicated that Moran-Soto was deported on January 22, 2009, six

days after his sentencing hearing and weeks prior to the issuance of his written judgment of

conviction.

The state asserts that, because Moran-Soto was deported and failed to file a written report

with his probation officer, he absconded from supervision and his appeal should be dismissed.

Moran-Soto responds that he is not a typical fugitive from justice because he has not willfully

violated his terms of probation. In support of this argument, Moran-Soto asserts that the district

court did not provide him with a written copy of his judgment or terms of probation before he

had been deported. As such, Moran-Soto argues, he was not given notice of who his probation

officer was or where to send his written reports. In addition, Moran-Soto argues that, because he

was not provided with a written order containing his probation terms, the state has failed to show

that Moran-Soto understood what was required of him should he be deported.

The decision whether to dismiss the appeal of a criminal defendant who has escaped from

custody or absconded from probationary supervision is within an appellate court’s sound

discretion. See State v. Larrea, 130 Idaho 290, 292, 939 P.2d 866, 868 (Ct. App. 1997). In

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Idaho, the right to appeal is purely statutory and is not mandated as a constitutional requirement.

Gardner v. State, 91 Idaho 909, 912, 435 P.2d 249, 252 (1967). An appellate court may dismiss

the appeal of a defendant who is a fugitive from justice during the pendency of his or her appeal.

Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993). The rationale for this fugitive

dismissal rule is two-fold. Id. at 240-41. First, any judgment produced against a fugitive

appellant would be unenforceable. Id. at 240.

Second, as stated by the United States Supreme Court in a case where the appellant

jumped bail and was considered a fugitive from justice:

No persuasive reason exists why this Court should proceed to adjudicate

the merits of a criminal case after the convicted defendant who has sought review

escapes from the restraints placed upon him pursuant to the conviction. While

such an escape does not strip the case of its character as an adjudicable case or

controversy, we believe it disentitles the defendant to call upon the resources of

the Court for determination of his claims.

Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). In other words, a defendant’s escape during

the pendency of an appeal essentially amounts to a waiver of the right to appeal; dismissal

discourages escapes and encourages fugitives to surrender. Ortega-Rodriguez, 507 U.S. at 240-

41.

In this case, the record includes the district court’s minutes from Moran-Soto’s

sentencing hearing. The minutes describe Moran-Soto’s probation terms, in part, as follows:

The following terms are suspended in the event of the defendant’s deportation for

the period that the defendant remains outside the United States of America.

During the period that the defendant remains outside the United States of

[America] pursuant to a deportation order, the defendant shall . . . submit to his

officer a truthful written report each and every month and report in person when

required.

(emphasis added). The above-quoted passage contains contradictory terms. The first sentence

states that the terms listed in the second sentence are suspended if Moran-Soto is deported.

However, the second sentence requires Moran-Soto to report to his probation officer if he is

deported. The minutes are silent as to whether Moran-Soto, who was assisted by an interpreter at

the sentencing hearing, understood these terms. In addition, the state failed to provide this Court

with a transcript from the sentencing hearing so that we may review how the district court

informed Moran-Soto of his terms of probation.

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The court minutes also indicate that the district court provided Moran-Soto with a written

notice of his rights upon sentencing, which he was instructed to review and sign. Unfortunately,

evidence of such signed written notice cannot be found in the record. In addition, Moran-Soto’s

judgment of conviction, which included his written probation terms, was entered weeks after he

had been deported. As a result, this Court is unable to determine whether Moran-Soto

understood the terms of his probation prior to his deportation. Therefore, the state has failed to

demonstrate that Moran-Soto is a fugitive from justice who is disentitled from pursuing his

appeal. Accordingly, the state’s motion to dismiss Moran-Soto’s appeal is denied.

B. Motion to Suppress

On appeal, Moran-Soto argues that the district court erred by denying his motion to

suppress. Specifically, Moran-Soto asserts that the state failed prove that his consent to the

search of his pocket was voluntary. 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).

Although a warrantless search is generally illegal and violative of the Fourth

Amendment, such a search may be rendered reasonable by an individual’s consent. State v.

Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707,

963 P.2d 387, 390 (Ct. App. 1998). In such instances, the state has the burden of demonstrating

consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420,

422 (Ct. App. 1997). The state must show that consent was not the result of duress or coercion,

either direct or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Whiteley,

124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s

consent is evaluated in light of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at

803. Consent to search may be in the form of words, gestures, or conduct. State v. Knapp, 120

Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991). Whether consent was granted voluntarily,

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or was a product of coercion, is a question of fact to be determined by all the surrounding

circumstances. State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052, 1057 (2003).

Moran-Soto argues that the warrantless search of his pocket was unlawful because, under

the totality of the circumstances, his consent to the search was not voluntary. In support of his

argument, Moran-Soto relies on State v. Garcia, 143 Idaho 774, 152 P.3d 645 (Ct. App. 2006).

In Garcia, this Court listed some of the factors a court may consider when determining whether

consent to search was given voluntarily, such as: the number of officers involved in the

confrontation; the location and conditions of the consent, including whether it was at night;

whether the police retained the individual’s identification; whether the individual was free to

leave; and whether the individual knew of his or her right to refuse consent. Id. at 778, 152 P.3d

at 649.

In that case, officers observed Garcia smoking what appeared to be marijuana with a

group of men at a public campground. Three officers approached the men; informed them what

they had observed; and stated that, if the men handed over the marijuana, they would be given

citations and released, but not arrested. However, the officers also informed the men that, if they

did not voluntarily turn over the marijuana, they would be arrested. In response to the officers’

statement, one of the men turned over his marijuana to police. Some time later, officers asked

Garcia’s permission to search his vehicle, which was located at the scene. Garcia agreed and the

search resulted in the discovery of nearly two pounds of marijuana.

Garcia filed a motion to suppress, arguing that his consent to the search of his vehicle

was coerced by the officers’ prior threat of arrest. The district court denied the motion and this

Court affirmed, holding that the officers’ threat was not coercive because it was far removed

from the actual search of the vehicle. In addition, this Court held that Garcia’s consent to the

search was voluntary because the search occurred in broad daylight and Garcia was not severely

outnumbered by police.

This Court also addressed a defendant’s consent to a search in State v. Jaborra, 143

Idaho 94, 137 P.3d 481 (Ct. App. 2006). In that case, officers stopped Jaborra for driving too

slowly and for driving with an expired registration. Officers noticed a bulge in Jaborra’s pocket

and confirmed that it was a knife. Upon removing the knife, an officer also removed a small

plastic box from Jaborra’s pocket. After a scuffle with Jaborra, officers asked if they could open

the box and Jaborra nodded his head. The box contained a controlled substance. Jaborra was

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arrested for possession of a controlled substance and filed a motion to suppress, which the

district court granted. This Court affirmed, holding that Jaborra’s consent to open the box was

not voluntary based on the findings of the district court. Id. at 98, 137 P.3d at 485. The district

court found that the confrontation between Jaborra and the armed officers occurred late at night.

In addition, the district court found that the officers grabbed Jaborra by the arm, knocked him off

balance, told him to put his hands on his head, and confiscated his driver’s license prior to asking

for his consent to search. Applying the same factors set out in Garcia, this Court affirmed the

district court’s determination that such factors demonstrated that Jaborra’s consent was not

voluntary.

In this case, Moran-Soto argues that the state failed to prove that he made a free and

unconstrained choice to allow the officer to search his pocket. Moran-Soto contends that his

consent was coerced because the officers were wearing uniforms and badges, had already

handcuffed two people, and told everyone in the tavern to remain where they were. At the

hearing on the motion to suppress, the officer testified that he detained Moran-Soto in order to

further investigate the discovery of drugs on the bar near where Moran-Soto was seated. During

this detention, the officer testified that Moran-Soto was not free to leave. Such an investigative

detention is permissible if it is based upon specific articulable facts which justify suspicion that

the detained person is, has been, or is about to be engaged in criminal activity. State v. Sheldon,

139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003).

The officer testified that, when he initially asked Moran-Soto if he possessed anything

illegal, Moran-Soto raised his arms and offered for the officer to “check.” The officer also stated

that Moran-Soto provided his identification and emptied his pockets in response to verbal

requests made by the officer in English. The officer further testified that, after emptying his

pockets, Moran-Soto spoke English and raised his arms in response to the officer’s request to

search his pocket and again responded, “Check.” Such requests were within the scope of the

investigative detention, in light of the discovery of methamphetamine nearby and the man at the

bar’s statement that Moran-Soto had recently attempted to sell him drugs. Unlike the officers in

Jaborra, the officers did not make physical contact with Moran-Soto. In addition, Moran-Soto’s

confrontation with the officers occurred around 5:30 p.m. on a summer evening indoors, not at

outside at night in the dark. Finally, similar to the circumstances in Garcia, there were other

patrons present at the tavern at the time of the search and Moran-Soto was not severely

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outnumbered by police. Therefore, substantial evidence supported the district court’s conclusion

that Moran-Soto’s consent to search was voluntary and not coerced.2

IV.

CONCLUSION

The state has failed to demonstrate that Moran-Soto understood the terms of his probation

prior to being deported. Therefore, the state’s motion to dismiss Moran-Soto’s appeal is denied.

Substantial evidence supported the district court’s conclusion that Moran-Soto’s consent

to the search of his pocket was voluntary. Therefore, the district court did not err by denying

Moran-Soto’s motion to suppress. Accordingly, Moran-Soto’s judgment of conviction is

affirmed.

Chief Judge LANSING, CONCURS.

Judge GUTIERREZ, SPECIALLY CONCURRING

I write separately because I believe that the state failed to establish that Moran-Soto’s

consent to search his pocket was voluntary. At the hearing on the motion to suppress, the

officers testified that, upon discovering what appeared to be methamphetamine on the bar, they

told everyone in the bar to remain where they were. The officers then began to question the

bartender and the man at the bar. One officer testified that the bartender did not wish to be

detained and was therefore placed in handcuffs and separated from the man at the bar, who was

also handcuffed. The majority states that this case is unlike the circumstances in Jaborra

because no physical contact occurred between Moran-Soto and the officers. However, the record

reveals that there was a physical scuffle between the bartender and the officers prior to the

officers’ investigation of Moran-Soto. Moran-Soto was present during the scuffle, and it was

reasonable for him to conclude that he was required to cooperate with police or would otherwise

be handcuffed. Further, similar to the circumstances in Jaborra, the officer in this case

confiscated Moran-Soto’s identification when the officer placed the Mexican identification card

on the bar after reviewing it and did not return it to Moran-Soto. Based on the actions of the

2

At the hearing on the motion to suppress, Moran-Soto argued that his consent to the

search of his pocket was coerced because he did not understand or speak English and that he

only complied with the officer’s requests because the officer was using hand signals. On appeal,

Moran-Soto does not dispute the district court’s conclusion that, based on the totality of the

circumstances, the communication level between the officer and Moran-Soto was sufficient to

establish consent.

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officers, it is unlikely that Moran-Soto understood his right to refuse consent to the search of his

pocket. In light of these circumstances, I conclude that the state has failed to establish that

Moran-Soto’s consent to the search of his pocket was not the result of duress or coercion.

Therefore, in my view, the officer’s search of Moran-Soto’s pocket was illegal.

Nevertheless, I would affirm Moran-Soto’s conviction on the alternative basis that the

state met its burden to demonstrate that the evidence discovered during the illegal search of

Moran-Soto’s pocket would have inevitably been discovered by officers. The exclusionary rule

is the judicial remedy for addressing illegal searches and bars the admission or use of evidence

gathered pursuant to the illegal search. See Stuart v. State, 136 Idaho 490, 496, 36 P.3d 1278,

1284 (2001). An exception to the exclusionary rule is the inevitable discovery doctrine. Id. The

inevitable discovery doctrine applies when a preponderance of the evidence demonstrates that

the information would have inevitably been discovered by lawful methods. Nix v. Williams, 467

U.S. 431, 444 (1984); State v. Gibson, 141 Idaho 277, 286 n.4, 108 P.3d 424, 433 n.4 (Ct. App.

2005).

In this case, the district court determined in the alternative that the officers had probable

cause to arrest Moran-Soto and would have inevitably discovered the methamphetamine during a

lawful search incident to arrest. Probable cause is the possession of information that would lead

a person of ordinary care and prudence to believe or entertain an honest and strong presumption

that a person they have placed under arrest is guilty of a crime. See State v. Julian, 129 Idaho

133, 136, 922 P.2d 1059, 1062 (1996). Probable cause is not measured by the same level of

proof required for conviction. Id. Rather, probable cause deals with the factual and practical

considerations on which reasonable and prudent persons act. Brinegar v. United States, 338 U.S.

160, 175 (1949); Julian, 129 Idaho at 136, 922 P.2d at 1062. When reviewing an officer’s

actions, the court must judge the facts against an objective standard. Julian, 129 Idaho at 136,

922 P.2d at 1062. That is, would the facts available to the officer, at the moment of the seizure

or search, warrant a reasonable person in holding the belief that the action taken was appropriate.

Id. A probable cause analysis must allow room for mistakes on the part of the arresting officer

but only the mistakes of a reasonable person acting on facts which sensibly led to his or her

conclusions of probability. State v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct. App.

2000).

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The officers testified that they observed what appeared to be methamphetamine on the

bar near where Moran-Soto was seated. In addition, one officer testified that the man at the bar

stated that Moran-Soto had attempted to sell him methamphetamine. Such evidence supports a

reasonable belief that Moran-Soto was guilty of selling or possessing methamphetamine.

Therefore, the officers had probable cause to arrest Moran-Soto and would have discovered the

methamphetamine in his pocket during a lawful search incident to arrest. The district court’s

application of the inevitable discovery doctrine was not in error. Accordingly, I would affirm

Moran-Soto’s judgment of conviction on that alternative basis.

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