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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 31883 STATE OF IDAHO, Plaintiff-Respondent, v. TROY MATTHEW DAVENPORT, Defendant-Appellant. ) ) ) ) ) ) ) ) ) )

2007 Opinion No. 8 Filed: March 6, 2007 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge. Order denying motion to suppress evidence, reversed. Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen argued. Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent. Thomas Tharp argued. ______________________________________________ LANSING, Judge Troy Matthew Davenport appeals his conviction for possession of methamphetamine, contending that the district court erred in denying his motion to suppress evidence of the methamphetamine that was found by an officer as he was frisking Davenport. Because we hold that the frisk was not justified by reasonable suspicion that Davenport was armed and dangerous, we reverse. I. BACKGROUND At about 10:30 on a November evening, a police officer saw Davenport walk away from a pay phone outside a closed convenience store in Boise. The officer stopped his patrol car and called out to Davenport. Davenport turned around and walked back to the officer, answered the officer's questions about his activities and identified himself. The officer later testified that he had not witnessed any criminal activity, and he did not articulate any suspicion that Davenport 1

was engaged in criminality. The officer said that as he spoke with Davenport, he realized that he had encountered Davenport several times in the past with regard to domestic disturbances. The officer also knew that Davenport had used methamphetamine, although he did not testify that he suspected Davenport to be under the influence of drugs that evening. During their conversation, which was recorded, Davenport repeatedly placed his hands in the pockets of his baggy pants and sweatshirt, and each time was instructed by the officer, in an increasingly forceful tone, to remove them. The fifth time this occurred, the officer told

Davenport that he intended to search him for weapons. The officer instructed Davenport to place his hands atop his head and, possibly, restrained his hands. The officer then asked Davenport if he had any weapons or other items that might injure the officer during the search. Davenport responded that he had several syringes in his pocket. The officer thereupon placed Davenport in handcuffs and conducted a search of Davenport's person, which revealed methamphetamine and drug paraphernalia. Davenport was arrested and charged with felony possession of

methamphetamine, Idaho Code

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