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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 33950
STATE OF IDAHO,                                                                                       )   2009 Opinion No. 36
)
Plaintiff-Respondent,                                                                                 )   Filed:  May 14, 2009
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v.                                                                                                    )   Stephen W. Kenyon, Clerk
)
WILLIAM TROY HEDGECOCK,                                                                               )
)
Defendant-Appellant.                                                                                  )
)
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 forged bank bills, affirmed.
Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy
Appellate Public Defender, Boise, for appellant.  Elizabeth A. Allred argued.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  Jessica  M.  Lorello,  Deputy
Attorney General, Boise, for respondent.  Jessica M. Lorello argued.
GUTIERREZ, Judge
William Troy Hedgecock appeals from his judgment of conviction entered upon his
conditional guilty plea to possession of forged bank bills.   Specifically, he contests the court’s
denial of his motion to suppress evidence, the denial of his Idaho Criminal Rule 35 motion for
reduction of sentence, and the length of the sentence imposed.  We affirm.
I.
FACTS AND PROCEDURE
In June 2005, Hedgecock was placed on probation for five years after pleading guilty to
possession of methamphetamine and attempted forgery.   He signed a document containing the
conditions of his probation, including the following relevant sections:
10.   Submit to Searches:   The defendant shall submit to a search of his/her
person, residence or vehicle at the request of any Probation Officer or a police
officer.
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1.  LAWS AND COOPERATION:  I shall respect and obey all laws and comply
with any lawful request of my supervising officer, any agent of the Division of
Community Corrections, or any police officer.
6.   SEARCH:   I agree and consent to the search of my person, automobile, real
property, and any other property at any time at any place by any Agent of the
Division  of  Community  Corrections  or  any  police  officer  and  waive  my
constitutional right to be free from searches.
(Emphasis added).
In  November                                                                                            2005,  Hedgecock’s  probation  officer,  Officer  Neumeyer,  arrived  at
Hedgecock’s apartment to “see what was going on with the house.”   Hedgecock was not at
home, but his roommate allowed the officers to enter.   While inside, Officer Neumeyer found
some items of “concern” including a scanner used to scan pictures and documents and inside the
scanner, a piece of manila file folder cut in the size and shape of a dollar bill.   The officer also
found illegal drugs on the person with whom Hedgecock was residing.
At some point in the search, Officer Waugh, a Wendell police officer, arrived to assist
Officer Neumeyer.   The two were standing on the balcony of the apartment when they saw a
vehicle pull up to a stop sign about fifty yards away.   Officer Waugh indicated it was the same
vehicle he had stopped more than a week prior and found Hedgecock inside.  The vehicle paused
briefly, the occupants looked toward the officers, and then it accelerated quickly away from the
stop sign.   Officer Neumeyer directed two county police officers to stop the vehicle to determine
if Hedgecock was inside, “check the vehicle” and “detain” Hedgecock until Neumeyer arrived on
the scene.   Officer Neumeyer testified at the suppression hearing that he had wanted Hedgecock
detained to question him about the scanner and to inform him the officers had found illegal drugs
on his roommate’s person, making it inappropriate for Hedgecock to continue living there.
The  officers  instigated  the  stop  solely on  the  grounds  that  Officer  Neumeyer  had
requested it and then notified Neumeyer that Hedgecock was, in fact, a passenger in the vehicle.
Before Officer Neumeyer arrived at the scene of the stop, Deputy Jeromy Smith, one of the
officers  who  stopped  the  vehicle,  conducted  a  search  of  the  passenger  seat  area  where
Hedgecock had been sitting.   The search revealed what Deputy Smith believed to be counterfeit
one-hundred-dollar bills.
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After  being  read  his  Miranda1  rights,  Hedgecock  admitted  that  the  bills  were
counterfeited from a one-hundred-dollar bill that he had in his wallet.   Officer Neumeyer, who
arrived about five minutes after Hedgecock was first detained, testified that Hedgecock also
admitted that he  had been using methamphetamine and that  he  was  intending to  use the
counterfeit bills to buy and sell drugs in a money laundering scheme.   After the genuine bill was
found in Hedgecock’s wallet, he was arrested.
Hedgecock was charged with possession of forged bank bills, Idaho Code § 18-3605.  He
filed a motion to suppress, claiming the seizure of the vehicle was unreasonable and thus, the
subsequent search was unlawful and the evidence recovered and his statements made should be
suppressed.   The court denied the motion, and Hedgecock subsequently entered a conditional
guilty plea, reserving the right to appeal the denial of his suppression motion.   The court entered
judgment and imposed a unified sentence of fourteen years, with seven years determinate.
Hedgecock filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district
court denied.  He now appeals.
II.
ANALYSIS
A.                                                                                                       Motion to Suppress
Hedgecock argues that discovery of the forged bank bills should be suppressed because
his Fourth Amendment right to be free from unreasonable seizures was violated when officers
illegally detained him without the requisite reasonable articulable suspicion--of criminal activity
or that Hedgecock was in the vehicle--to make the stop.   He also contends that he did not waive
his right to be free from unreasonable seizure as a condition of his probation.   The state counters
that Hedgecock’s Fourth Amendment probation waiver includes a waiver of his constitutional
rights to be free from searches and seizures.   Alternatively, the state argues that even assuming
for the sake of argument, Hedgecock only waived his right to be free from searches, not seizures,
the  district  court  correctly  concluded  there  was  reasonable  articulable  suspicion  justifying
Hedgecock’s seizure.
1                                                                                                        See Miranda v. Arizona, 384 U.S. 436 (1966).
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When reviewing the decision on a suppression motion, we defer to the trial court’s
findings  of  fact  unless  they  are  clearly  erroneous,  while  exercising  free  review  over  the
application of constitutional standards to those facts.   State v. Henage, 143 Idaho 655, 658, 152
P.3d 16, 19 (2007); State v. Hawkins, 131 Idaho 396, 400, 958 P.2d 22, 26 (Ct. App. 1998).
Deference is also given to the trial court’s decisions regarding the credibility of witnesses, the
weight to be given to conflicting evidence and the factual inferences to be drawn.   State v.
Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995).
The Fourth Amendment to the United States Constitution prohibits government agents
from conducting unreasonable searches and seizures.   When a private vehicle is stopped by the
police, all of its occupants are “seized” and may seek suppression of evidence if the seizure did
not comply with Fourth Amendment standards.   Brendlin v. California, 551 U.S. 249 (2007);
State v. Nevarez et. al., ___ Idaho ___, ___ P.3d ___ (Ct. App. 2009); State v. Luna, 126 Idaho
235, 880 P.2d 265 (Ct. App. 1994).   Normally, to pass constitutional muster, a detention to
investigate possible criminal activity must be based upon reasonable suspicion, derived from
specific articulable facts, and the rational inferences that can be drawn from those facts, that the
person stopped has committed or is about to commit a crime.   Terry v. Ohio, 392 U.S. 1, 26
(1968); State v. Bishop, 146 Idaho 804, 203 P.3d 1203 (2009); State v. Sheldon, 139 Idaho 980,
983, 88 P.3d 1220, 1223 (Ct. App. 2003); State v. Salato, 137 Idaho 260, 264, 47 P.3d 763, 767
(Ct.  App.                                                                                               2001).    The quantity and quality of information  necessary to  create reasonable
suspicion for such a “Terry stop” is less than that necessary to establish probable cause, Alabama
v. White, 496 U.S. 325, 330 (1990); Bishop, 146 Idaho at 811, 203 P.3d at 1210, but must be
more than a mere hunch or unparticularized suspicion.  Terry, 392 U.S. at 27.
When a defendant challenges the validity of a vehicle stop, the burden is on the state to
prove that the stop was justified.   Florida v. Royer, 460 U.S. 491, 500 (1983); State v. Sevy, 129
Idaho 613, 614-15, 930 P.2d 1358, 1359-60 (Ct. App. 1997).   The reasonableness of a stop is
determined by looking at the totality of the circumstances confronting the officer at the time of
the stop.   United States v. Cortez, 449 U.S. 411, 417 (1981); State v. Osborne, 121 Idaho 520,
526, 826 P.2d 481, 487 (Ct. App. 1991).   Due weight must be given to the reasonable inferences
that a law enforcement officer is entitled to draw from the facts in light of his experience.   Terry,
392 U.S. at 27.
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Hedgecock first contends the officers did not possess reasonable, articulable suspicion to
stop the vehicle because they had only a “hunch” that he was even inside the vehicle.   Here,
Officer Neumeyer knew that Hedgecock was under supervision stemming from his convictions
for drug possession and attempted forgery and had found incriminating evidence in both regards
after searching his residence and speaking with his roommate.   Thus, Officer Neumeyer had
reasonable suspicion that Hedgecock was still engaged in criminal activity--a fact that became
more significant when the officers watched a vehicle in which Hedgecock had been a passenger
more than a week earlier, pull to the stop sign approximately fifty yards from the residence.  The
officers observed the vehicle occupants look up toward the officers and then accelerate away
from the scene at a high rate of speed.   Thus, while at the time of the stop, the officers had not
yet definitively determined that Hedgecock was a passenger, they did have reasonable suspicion,
given the totality of the circumstances, that he was inside.   Under Fourth Amendment strictures,
the officers lawfully detained the vehicle in which Hedgecock was a passenger.
Furthermore, Idaho appellate courts have long recognized that parolees and probationers
have a diminished expectation of privacy and will enforce Fourth Amendment waivers as a
condition of parole or probation.   State v. Cruz, 144 Idaho 906, 908-09, 174 P.3d 876, 878-79
(Ct. App. 2007).   Most recently, in State v. Purdum, ___ Idaho ___, ___ P.3d ___ (2009), the
Idaho Supreme Court approved this Court’s holding that a probationer’s waiver requiring him to
submit to “random” blood, breath, and/or urine analysis upon the request of law enforcement
personnel, encompassed a waiver of his right to be free of suspicionless seizures.   In that case,
during Purdum’s probationary period for possession of methamphetamine, a patrolling police
officer, familiar with the conditions of Purdum’s probation, witnessed Purdum driving a vehicle
and decided to stop him--without any suspicion of wrongdoing--and ask that he submit to a
random drug test.   Purdum initially fled on foot and when the officer eventually apprehended
him,  he  searched  Purdum’s  person  and  his  vehicle,  discovering  drugs  and  associated
paraphernalia.  The trial court denied Purdum’s motion to suppress wherein he alleged the officer
did not have the authority to detain him.
Initially, in denying Purdum’s argument on appeal, the Supreme Court noted that both it
and this Court have previously held that similar language in a probationer’s waiver constituted
valid, express consent to suspicionless, warrantless searches.   See State v. Gawron, 112 Idaho
841, 736 P.2d 1295 (1987) (validating a search conducted without reasonable suspicion where a
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condition of the defendant’s probation was consent to search his person or any property “at any
time and at any place by any law enforcement officer”); State v. Pecor, 132 Idaho 359, 364, 972
P.2d 737, 742 (Ct. App. 1998) (citing Gawron for the proposition that reasonable suspicion is not
required  for searches  pursuant to  terms  of probation).    The  Court concluded its  analysis,
addressing Purdum’s claim that his consent to submit to random evidentiary testing did not mean
that he consented to a seizure for such testing, by citing to this Court’s treatment of the issue
where we stated:
While the Idaho Supreme Court has said that conditions of probation, especially a
waiver of a Fourth Amendment right, cannot be implied . . . an officer must be
able  to  temporarily  detain  a  probationer  in  order  to  effectuate  this  search
condition.  Any other reading would render the provision a nullity.
State v. Purdum, ___ Idaho at ___, ___ P.3d at ___ (quoting State v. Purdum, 2008 WL 183377
at *4 (Idaho Ct. App. 2008) (citations and footnote omitted).   Thus, the Court concluded that
Purdum consented to submit to random evidentiary testing and, therefore, impliedly consented to
a limited seizure of his person necessary to effectuate such searches.  Id.
Hedgecock attempts to distinguish his situation from Purdum, arguing that in that case,
the officer testified that he had decided to stop the defendant for the purpose of asking him to
submit to a drug test in compliance with his probationary conditions, but in this case “no such
connection between the actions of the officers and the seizure of Mr. Hedgecock can be drawn.”
We interpret this as a reference to the officers’ subjective intent in effectuating the seizure, with
Hedgecock arguing that the law enforcement official making (or directing the making of) the
stop must state that “they desired to detain Mr. Hedgecock to effectuate a search of his person,
residence, or vehicle” before the seizure could be considered valid under the terms of the
probation  agreement.    Officer  Neumeyer  testified  that  he  ordered  the  vehicle  in  which
Hedgecock was riding to be stopped and “checked” and for Hedgecock to be detained until
Neumeyer’s arrival.   This was done immediately after the officer had found in Hedgecock’s
residence “items of concern” that were suspected to have been used in criminal activity.  Thus, it
is implicit in the officer’s testimony that his intention at the time of the stop was to search
Hedgecock and the vehicle for evidence of suspected criminal activity, based on the items found
in his residence.    As a result, Hedgecock’s attempt to distinguish Purdum on this basis is
unavailing.   We conclude, therefore, that the district court did not err in denying Hedgecock’s
motion to suppress.
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B.                                                                                                     Sentence Review
Hedgecock also contends that given any view of the facts, his unified sentence of
fourteen years, with seven years determinate, is excessive.   An appellate review of a sentence is
based on an abuse of discretion standard.   State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304
(Ct. App. 2000).   Where a sentence is not illegal, the appellant has the burden to show that it is
unreasonable, and thus a clear abuse of discretion.   State v. Brown, 121 Idaho 385, 393, 825 P.2d
482, 490 (1992).   A sentence may represent such an abuse of discretion if it is shown to be
unreasonable upon the facts of the case.   State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982).   A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary  “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.”  State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982).  Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender and the protection of the public interest.    State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982).   When reviewing the length of a sentence, we consider the
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 170 P.3d 387 (2007).
Admitting  that  the  sentence  is  within  the  statutory  maximum                                    (fourteen  years
imprisonment), Hedgecock argues that, nonetheless, his sentence was an abuse of discretion
because the district court failed to properly consider the mitigating factors present in his case.
He asserts that the court failed to give proper consideration to the fact that he had admitted to a
substance abuse problem and had stated his desire for treatment.   He also contends the court
failed to take into account his mental illness, the continued support of his family, his expressed
remorse  over  the  offense  at  issue,  and  his                                                      “good  behavior”  and                                                                        “progress”  during  his
incarceration.
When sentenced in this case, Hedgecock was twenty-nine years old and had a lengthy
record, including three prior felony convictions2 and a past history of gang involvement and
supporting himself by selling drugs.   He also had juvenile adjudications for fraudulent use of a
financial transaction card, possession of a controlled substance, escape, and aiding and abetting
2                                                                                                      The state specifically agreed not to pursue a persistent violator charge against Hedgecock
which would have made life imprisonment the statutory maximum sentence in this case.
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burglary.   The evidence established that he had been given several previous opportunities for
treatment, probation, and retained jurisdictions, all which proved unsuccessful in preventing his
recidivism.
The record also shows that in determining the appropriate sentence, the district court
specifically articulated the four objectives of sentencing it would consider and noted that it had
read the three letters submitted on Hedgecock’s behalf and the letter written by Hedgecock
himself.  The court then proceeded to consider the fact that Hedgecock suffered from a substance
abuse  problem  and  that  he  had  had  several  failed  attempts  at  rehabilitation--including
unsuccessful stints in a rehabilitation center, on a rider, on several terms of probation, and on a
term of parole.  The court emphasized Hedgecock’s prior criminal history, as well as the fact that
he had received three disciplinary offense reports while awaiting sentencing in the instant case
and numerous other disciplinary offense reports while in prison on other charges.   The court
opined that the chance Hedgecock would reoffend was “essentially 100 percent based upon past
conduct, based upon [his] personality, and based upon the drug addiction.”   It also considered
Hedgecock’s mental health history, noting that he had been diagnosed with “adult antisocial
behavior.”  Based on his history and the fact that he is a “multiple offender,” the court concluded
that Hedgecock  “just  .  .  . can’t follow the rules”--whether incarcerated or not--and that the
court’s need to protect society justified the sentence imposed.
A review of the record on appeal convinces us that the court took the proper factors into
consideration, including the mitigating factors which Hedgecock points to, when coming to a
conclusion regarding the sentence to impose.   In light of the nature of the offense, Hedgecock’s
prior history of criminal behavior and drug use and his demonstrated inability to be rehabilitated
and succeed on probation, we conclude that he fails to establish that the sentence imposed was an
abuse of the district court’s considerable discretion in this area.
C.                                                                                                    Rule 35 Motion
Hedgecock also argues that the district court erred in denying his Rule 35 motion for
reduction of sentence.   Initially, we note that an order denying a motion for reduction of a
sentence under Rule 35 is reviewed for an abuse of discretion.   Both our standard of review and
the factors to be considered in evaluating the reasonableness of the sentence are well established.
See State v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct. App. 1991); State v. Lopez, 106
Idaho 447, 680 P.2d 869 (Ct. App. 1984); Toohill, 103 Idaho 565, 650 P.2d 707.
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If a sentence is found to be reasonable at the time of pronouncement, the defendant must
then show that it is excessive in view of the additional information presented with the motion for
reduction.   Hernandez, 121 Idaho at 117, 822 P.2d at 1014.   On appeal, Hedgecock points to
additional information supplied to the district court in the form of a letter from the mother of
Hedgecock’s son.   The letter referred to the recent “bond” formed between Hedgecock and his
son and the mother’s belief that “with [Hedgecock’s son’s] supportiveness and the truth how it is
[sic] will help in [Hedgecock’s] rehabilitation.”   It also expressed that “[Hedgecock] and [his
son] need each other.   Together with the help of whoever is willing to help (so many people
contribute to recovery for addicts) we can help him.”
As the state points out, the crux of the letter was making the court aware of the
relationship between Hedgecock and his son--a fact of which the court was cognizant at the time
of sentencing.   Hedgecock’s counsel specifically noted that Hedgecock’s son’s mother was no
longer seeking termination of Hedgecock’s parental rights and that his “son is an important part
of his life.”   In denying Hedgecock’s Rule 35 motion, the court stated that “[t]he defendant has
not presented, in conjunction with this motion, any evidence that was not considered by the
Court at the time of the sentencing hearing.”    We agree and affirm the court’s denial of
Hedgecock’s motion for reduction of sentence.
III.
CONCLUSION
The district court did not err in denying Hedgecock’s motion to dismiss, nor did it err in
denying his Rule 35 motion for reduction of sentence.   Hedgecock has also failed to show that
the sentence imposed was an abuse of discretion.
Chief Judge LANSING CONCURS.
Judge Pro Tem SCHWARTZMAN SPECIALLY CONCURS.
I concur in the opinion of this Court, taking note that the entire operation was under the
direction  of  defendant’s  probation  officer,  from  the  entering  and  search  of  Hedgecock’s
apartment to the request to law enforcement to stop and check the vehicle and detain Hedgecock
until he arrived.   A probation officer can certainly request the assistance of law enforcement to
assist in a probation search and seizure.   See State v. Cruz, 144 Idaho 906, 910, 174 P.3d 876,
880 (Ct. App. 2007); State v. Vega, 110 Idaho 685, 688, 718 P.2d 598, 601 (Ct. App. 1986).
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I write separately, however, as I did in Purdum 1, 2008 WL 183377 (Idaho Ct. App.
2008) to again note that Hedgecock’s terms of probation carry the potential of transforming
every police officer in the State of Idaho into a de facto probation/parole officer.   This raises
troubling complications about the permissible scope of a suspicionless detention and/or search
when conducted, not by a probation officer involved in an ongoing supervisory relationship
making home visits or seeking to interview a subject, but by a police officer/detective in the field
who randomly encounters a probationer going about his daily business or otherwise decides to
pay a nocturnal “courtesy call” at his/her residence.
The standardized boilerplate language of Hedgecock’s probationary  “consent/waiver”
literally permits such searches and seizures, without probable cause, or even suspicion, of the
probationer’s person, vehicle or home at any time and place, day or night, by any police officer.
The potential for arbitrary, capricious or harassing enforcement is self-evident.   See dissent of
Justice Bistline in State v. Gawron, 112 Idaho 841, 844-847, 736 P.2d 1295, 1298-1301 (1987)
and cases cited therein; see also Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977) and Reichel
v. State, 101 P.3d 197, 202 (Alaska Ct. App. 2004) (“except when acting at the direction of a
parole officer,” general condition of probation giving police officers independent authority to
require a probationer to submit to a search violates Alaska Constitution).
Just how far this type of probationary term can be stretched, because of the subject’s
diminished expectation of privacy, remains to be seen.   See Samson v. California, 547 U.S. 843,
850-856 (2006) (while upholding suspicionless search of parolee on a public street conducted by
a police officer, Supreme Court disavowed the proposition that parolees, like prisoners, have no
Fourth Amendment rights, and recognized California’s prohibition against “arbitrary, capricious
or harassing” parole searches); compare State v. Purdum, ___ Idaho, ___, ___ P.3d ___                  ___
(2009) (“While the United States Supreme Court has not yet addressed whether a probationer
may waive his Fourth Amendment rights through acceptance of probationary search conditions
(fn.1), this Court has determined that a probationer’s consent to searches constitutes a waiver of
Fourth Amendment rights.”) (citing State v. Gawron, 112 Idaho 841, 736 P.2d 1295 (1987).
Footnote one of Purdum cites to United States v. Knights, 534 U.S. 112, 118 (2001) and Samson,
547 U.S. at 852 n.3, both of which refer to consent in the Schneckloth [v. Bustamonte, 412 U.S.
218 (1973)] sense of a complete waiver of Fourth Amendment rights.   This leaves for possible
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future consideration such issues as voluntariness, understanding, revocability, and serving the
legitimate ends of probation which I only mention in passing.
I suspect that the appellate courts of Idaho have not seen the last of this term of probation.
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