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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 32805 STATE OF IDAHO, Plaintiff-Respondent, v. MARVIN SHANE BISHOP, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) 2007 Opinion No. 80 Filed: December 4, 2007 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. R. Barry Wood, District Judge. Judgment of conviction for possession of a controlled substance and resisting and obstructing an officer, vacated and case remanded. Molly J. Huskey, State Appellate Public Defender; Shannon N. Romero, Deputy Appellate Public Defender, Boise, for appellant. Shannon N. Romero argued. Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent. Thomas Tharp argued. ______________________________________________ GUTIERREZ, Judge Marvin Shane Bishop appeals from his judgment of conviction for possession of a controlled substance and resisting and obstructing an officer. Specifically, Bishop challenges the denial of his motion to suppress. Because we conclude that Bishop's motion to suppress should have been granted, we vacate Bishop's judgment of conviction and remand. I. BACKGROUND On May 25, 2005, two carnival workers contacted Casey Kelly, the Hagerman City Superintendent, and reported that a man, later identified as Bishop, had just offered to sell them methamphetamine. The carnival workers were in Hagerman for the Fossil Days celebration which was taking place that weekend. The two men asked Kelly to contact the police for them, which he did. Kelly called Chief Loren Miller of the Hagerman police department, who was on

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duty that evening. Kelly reported the direction Bishop was heading, what street he was on, and gave a description of him. While Chief Miller was en route to talk to Bishop, Kelly again called him and reported that he had followed Bishop until Bishop entered a market. Chief Miller was still on the phone with Kelly when he arrived at the market and observed Bishop exiting the store. Kelly identified Bishop as the man he had called Chief Miller about earlier. Chief Miller then followed Bishop into an alley behind the store, identified himself as a police officer, and told Bishop he needed to speak with him. Bishop said, "Hello" to Chief Miller but did not stop walking. Chief Miller got out of his marked police car and again stated that he needed to speak with him. Bishop asked what Chief Miller needed to speak with him about, and Chief Miller responded that it was about methamphetamine. At this point Bishop stopped walking and told Chief Miller that "he was a Christian and that Jesus loved [Chief Miller] too." Bishop's eyes were blood-shot and he was nervous and fidgety. According to Chief Miller he had a "wild look" in his eyes. Bishop was clutching a plastic grocery bag to his chest with both hands. Chief Miller could tell that Bishop did not want to be there speaking with him. Chief Miller informed Bishop that he was going to conduct a pat-down search for weapons, for the safety of both of them. Bishop refused to submit to the search, repeatedly telling Chief Miller, "No." Chief Miller told Bishop to follow his instructions or he would be placed under arrest. Bishop said, "Okay" and put his hands on the trunk of the police car. Shortly after Chief Miller began the patdown search, Bishop turned around to face him and again said, "No." A struggle ensued while Chief Miller attempted to handcuff Bishop. Chief Miller placed Bishop on the ground, and Bishop tucked his hands and knees in to his chest in the fetal position to avoid being handcuffed. Another officer arrived on the scene and assisted Chief Miller in handcuffing Bishop. A cursory pat-down search was conducted after Bishop was arrested, revealing a baggie of methamphetamine in his pocket. Bishop was transported to the carnival area where the two carnival workers identified him as the man who offered to sell them methamphetamine. Bishop was initially charged with two counts of possession of a controlled substance for methamphetamine and marijuana, possession of drug paraphernalia, and resisting an officer. After his motion to suppress was denied, Bishop entered a conditional guilty plea to possession of a controlled substance, methamphetamine, I.C.

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Idaho Law