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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 36797 STATE OF IDAHO, Plaintiff-Appellant, v. IRVIN C. RAY, Defendant-Respondent. ) ) ) ) ) ) ) ) ) )

2010 Opinion No. 82 Filed: December 10, 2010 Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge. Order of the district court granting suppression of evidence, affirmed. Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for appellant. Lori A. Fleming argued. Valerie P. Thornton, Sandpoint, for respondent. ________________________________________________ MELANSON, Judge The state appeals from the district courts order suppressing evidence arising from an allegedly unlawful detention of a vehicle in which Irvin C. Ray was a passenger. For the reasons set forth below, we affirm. I. BACKGROUND On March 17, 2009, a state police officer was traveling west on a two-lane highway when he passed a silver Subaru wagon with only one headlight1 traveling toward him in the eastbound lane. The Subaru was immediately followed by a pickup, in which Ray was a passenger. To effectuate a traffic stop of the Subaru, the officer made a U-turn and began pursuit. The officer followed the cars a short distance before activating his overhead lights just before a turnout. At

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The officer later stated what caught his attention was that the car did not have a front license plate. 1

this point the officer was directly behind Rays pickup. Both vehicles pulled over into the turnout and the officer maneuvered his car between them--that is, directly behind the lead vehicle and approximately three to five car lengths in front of Rays pickup. While passing Rays pickup, the officer radioed dispatch and called out the license plate number of only the Subaru as his intent was to stop just that vehicle. Within seconds of passing Rays pickup, the officer stepped from the patrol vehicle, which still had its lights on, and proceeded toward the pickup. The officer testified that he walked back to the pickup because, even though the officer had pulled in behind the lead vehicle, the pickup remained parked behind the officers car. Therefore, for safety purposes, the officer felt the need to convey his intent to stop only the lead car and to ask the pickups driver to continue on. It took the officer approximately sixteen seconds to walk back to the pickup, from the time he unlatched his patrol car door until the time he said "Hello" to Ray. Upon reaching the pickup, however, the officer smelled a strong odor of unburnt marijuana coming from the open drivers side window and noticed that neither the driver nor Ray was wearing a seatbelt. The officer greeted the occupants, told them that he had only intended to stop the Subaru, began questioning them about the seatbelt violations, and examined their identifications. Ultimately, based on the smell of marijuana, the officer searched the occupants and the pickup. The officer found a marijuana pipe, rolling papers, and a small baggie of marijuana in Rays pockets and 8.2 ounces of marijuana in a backpack in the pickup. Ray was charged in two separate cases with misdemeanor possession of drug paraphernalia, I.C.

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