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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 32641 STATE OF IDAHO, Plaintiff-Respondent, v. DYLAN WERNER SCHMITT, Defendant-Appellant. ) ) ) ) ) ) ) ) ) )

2007 Opinion No. 47 Filed: July 11, 2007 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Gregory S. Anderson, District Judge. Judgment of conviction for possession of methamphetamine with intent to deliver, affirmed. Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. ______________________________________________ PERRY, Chief Judge Dylan Werner Schmitt appeals from his judgment of conviction for possession of methamphetamine with intent to deliver. Specifically, Schmitt challenges the district court's denial of his motion to suppress. For the reasons set forth below, we affirm. I. FACTS AND PROCEDURE At approximately 1:00 a.m. a police officer observed the front entrance, a sliding glass door, of a moving and storage warehouse being pulled shut by someone inside. The officer became suspicious as he had never known anyone to work or enter the warehouse during nonbusiness hours. Additionally, other businesses in the area had a history of burglaries. The officer observed that a car was parked by the front entrance in the warehouse's parking lot and that no lights or signs of activity could be seen through the building's windows. The officer called for backup and, within a few minutes, another officer arrived at the scene. 1

The officers approached the front entrance and determined the door was locked. The officers then positioned themselves so as to observe the front entrance and waited. During that time, one of the officers heard someone manipulate the sliding glass door, but there was no other sign of activity inside the building. Nearly an hour later, the officers saw a light turn on inside the building, only to abruptly switch off. Shortly thereafter, three individuals exited the

warehouse, one of which was Schmitt. With one hand, Schmitt was pulling a rolling suitcase that had a smaller bag on top of it. Schmitt was holding an open container of beer in his other hand. The officers drew their weapons and ordered Schmitt and his companions to lie on the ground. All three complied. One of the officers then informed Schmitt he was under arrest for a violation of a city of Idaho Falls open container ordinance. The officers radioed for additional assistance. When backup officers arrived at the scene, Schmitt and the two other suspects, who had remained face-down on the ground, were handcuffed and made to stand up. An officer began to perform a frisk of Schmitt for weapons. During the frisk, the officer noticed that Schmitt was unable to speak clearly in response to questions being asked of him. The officer looked closely at Schmitt's face and saw a plastic bag in Schmitt's mouth. Based upon his experience, the officer suspected it was illegal drugs. The officer became concerned that, if Schmitt swallowed a bag containing illegal drugs, it would both destroy evidence and put Schmitt at great risk for a harmful, or potentially fatal, overdose. The officer ordered Schmitt to spit the bag out. When Schmitt refused to comply, the officer attempted to force the bag out. At this point, Schmitt broke free and ran. After a short chase, the officers apprehended Schmitt and eventually forced the bag out of his mouth with the use of a pen. The bag contained a large amount of methamphetamine. The officers also searched the luggage Schmitt had in his possession when he left the warehouse and recovered a handgun. The state initially charged Schmitt with trafficking methamphetamine and unlawful possession of a firearm. Schmitt moved to suppress the methamphetamine and handgun

evidence as being the result of an unlawful detention and unreasonable search. The district court denied the motion on the grounds that reasonable suspicion existed to conduct an investigative detention of Schmitt and that the methods used to detain him were not intrusive enough to constitute a de facto arrest. The district court went on to determine that the warrantless search of

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his mouth was acceptable given the exigent circumstance of possible destruction of evidence and potential harm to Schmitt. Finally, in the alternative, the district court also concluded that the officers had probable cause to arrest Schmitt for the open container violation and any subsequent search of his person was a constitutionally reasonable search incident to arrest. Schmitt entered a conditional guilty plea to an amended charge of possession of methamphetamine with intent to deliver. I.C.

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