I have reviewed videos, the scene, and the interviews conducted in the investigation referenced above for the purpose of determining whether any criminal laws were violated by Trooper Alexandra Larrea employed by District 6 of the Idaho State Police.

STANDARD OF CRIMINAL REVIEW

Pursuant to Idaho Code § 18-109, “a crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, [an enumerated] punishment.” Pursuant to Idaho Code §§ 19-505 and 19-506, in order to charge a crime, there must be sufficient facts which tend to establish there is probable cause to believe that an offense has been committed and that the defendant committed it. In other words, there must be both a prohibited act and sufficient evidence to establish probable cause to believe that an individual violated a law, which requires or proscribes an act, and provides for a punishment for committing or omitting the act.

STATEMENT OF FACTS

On December 4, 2023, at approximately 0109 hours, Trooper Alexandra Larrea initiated a traffic stop by activating her patrol car’s emergency red and blue lights in an attempt to stop a 2002 Honda Accord bearing Idaho license plate 4BL566U.

The Honda pulled into the Candlewood Suites Hotel at 665 Pancheri Dr., Idaho Falls, ID, 83402. The Honda pulled into a handicap spot, with the front of the car facing the building. Trooper Larrea pulled behind the Honda at an angle and exited the vehicle.

Trooper Larrea contacted the driver, Destini J. Twitchell, and the passenger, Marcos A. Cortez.  

Trooper Larrea noticed a piece of tin foil and needles during the traffic stop, which Mr. Cortez became defensive about. Trooper Larrea asked the Idaho Falls Police Department for assistance, and K9 Officer Mitchall Bierma began to respond at approximately 0111 hours. Trooper Larrea started to ask Mr. Cortez to exit the vehicle at about 0114 hours, and Mr. Cortez argued and refused to.

Mr. Cortez began to reach around the vehicle at approximately 01:14:58 hours, and Trooper Larrea told Mr. Cortez to stop. Mr. Cortez did not stop, and at approximately 01:15:05, Trooper Larrea told Mr. Cortez again to stop reaching around. At approximately 01:15:06, Mr. Cortez shot twice across Destini at Trooper Larrea. Mr. Cortez used a Taurus PT 738 .380 semi-automatic pistol. The shots barely missed Trooper Larrea.

Mr. Cortez exited the Honda and, at approximately 01:15:08, fired two shots at K9 Officer Mitchall Bierma as he was coming to a stop with his emergency red and blue overhead lights activated. Trooper Larrea returned fire and hit the back window of the Honda. Mr. Cortez fled to the East, going toward Nugget CBD, located at 625 Pancheri Dr., Idaho Falls, ID, 83402. K9 Officer Bierma and K9 Argo began pursuing Mr. Cortez on foot.

As K9 Officer Bierma and K9 Argo got to the northeast corner of the Candlewood Suites Hotels he discharged his firearm three times at Mr. Cortez. K9 Officer Bierma and K9 Argo continued to pursue Mr. Cortez behind the CBD Nugget.

Trooper Larrea told Destini to show her hands. At approximately 01:16:10, Trooper Larrea ordered Destini out of the car. Destini subsequently complied and was handcuffed and placed in Trooper Larrea’s patrol vehicle.

Mr. Cortez can be seen on the Intermountain Packaging camera going behind the building and heading towards Win Certified Auto Sales with his gun still in his right hand. K9 Officer Bierma and K9 Argo followed behind Mr. Cortez.

At Win Certified Auto Sales, Mr. Cortez came into the frame of Cam1 video. Mr. Cortez was in front of Win Certified Auto Sales; he slipped and fell. Mr. Cortez lost his black beanie and got up, putting his gun to the right side of his head. Sgt. Kevin Goms entered the Win Certified Auto Sales parking lot from the North Entrance with his lights and siren activated. Mr. Cortez continued to walk around the parking lot with his gun to the right side of his head. At approximately 00:40:19, another IFPD officer passed Sgt. Goms and entered the parking lot from the East entrance with his lights activated.

On Cam3, Mr. Cortez entered the frame with his gun still on the right side of his head. Mr. Cortez walked between an Orange Jeep Wrangler and a Grey Toyota Tacoma and can be seen saying something with his left arm in the air. K9 Argo entered the frame and headed straight towards Mr. Cortez. At approximately 01:17:07, Mr. Cortez shot himself, and at approximately 01:17:08, Sgt. Goms shot once.

IFPD officers started applying life-saving measures by starting chest compressions on Mr. Cortez. EMS personnel took over chest compressions and assessed Mr. Cortez. Mr. Cortez was declared deceased on scene.

STATEMENT OF THE LAW

An otherwise violent act is justifiable if a person was acting in self-defense and/or the defense of another.  In this case it appears that at the time of the shooting there was an imminent threat toward Trooper Larrea and a third person, Idaho Falls Police Officer Mitch Bierma.

If an act involving asserted self-defense results in death, the analysis proceeds under Idaho Code § 18-4009, which states in pertinent part, “Homicide is justifiable when committed by any person when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.”  Essentially this permits self-defense with a deadly weapon only where the accused has reasonable cause to believe, and does believe, she (or a third person) is in danger of great bodily injury or death.

However, self-defense is further justified, “(d) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed … or in lawfully keeping and preserving the peace.

When the act involving asserted self-defense does not result in death, the analysis proceeds under Idaho Code §19-202, which states in pertinent part, “Resistance sufficient to prevent [a public] offense may be made by the person about to be injured to prevent an offense against his person.”  I.C. § 19-202 gives one the right to use resistance sufficient to prevent the offense.

Homicide is justifiable when committed by public officers when reasonably necessary in overcoming actual resistance in the discharge of any legal duty including preserving the peace.  Use of deadly force is justified in overcoming actual resistance when the officer has probable cause to believe that the resistance poses a threat of death or serious physical injury to the officer.  

In order to find that a person acted in self-defense, all of the following conditions must be found to have been in existence at the time of the use of deadly force:

1. A person must have believed that they were in imminent danger of death or great bodily harm.

2. In addition to that belief, a person must have believed that the action they took was necessary to save themselves from the danger presented.

3. The circumstances must have been such that a reasonable person, under similar circumstances, would have believed that they were in imminent danger of death or great bodily injury and believed that the action taken was necessary.

4. A person must have acted only in response to that danger and not for some other motivation.

5. When there is no longer any reasonable appearance of danger, the right of self-defense ends.

In deciding upon the reasonableness of a person’s beliefs, it should be determined what an ordinary and reasonable person might have concluded from all the facts and circumstances which existed at that time, and not with the benefit of hindsight.  

The danger must have been present and imminent or must have so appeared to a reasonable person under the circumstances.  A bare fear of death or great bodily injury is not sufficient to justify a homicide or use of deadly force.  The person must have acted under the influence of fears that only a reasonable person would have had in a similar position.

Under the law of self-defense, a person has the right to defend himself from “the infliction of great bodily injury,” but “the exercise of that right must be grounded upon a reasonable apprehension of imminent harm, and a reasonable belief that the killing is necessary to protect against such injury.”

The kind and degree of force which a person may lawfully use in self-defense is limited by what a reasonable person in the same situation, seeing what that person sees and knowing what that person knows, would believe to be necessary at that time. Any use of force beyond what is necessary is regarded by the law as excessive. Although a person may believe that they are acting, and may act, in self-defense, a person is not justified in using a degree of force clearly in excess of that apparently and reasonably necessary under the existing facts and circumstances.

Bare fear alone is not a legally sufficient reason to act in self-defense. In addition to one’s perception of the situation, there must be circumstances sufficient to excite the fears of “a reasonable man.”  The Idaho rule of self-defense is not premised upon a subjective test. It is grounded in the objective concept of the actions of a “reasonable person.”  

The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.

In Idaho, no person shall be placed in legal jeopardy of any kind whatsoever for protecting himself by reasonable means necessary, from becoming the victim of aggravated assault, robbery, rape, murder or other heinous crime.

In the exercise of the right of self-defense or defense of another, a person need not retreat from any place that person has a right to be. A person may stand his ground and defend himself or another person by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge without the benefit of hindsight.  This law applies even though the person being attacked might more easily have gained safety by flight or by withdrawing from the scene.

The idea of a requirement of “retreating to the wall” or “retreating as far as he can, or disabling his adversary without killing him, if it be in his power” has never been the law of the land. A person placed under an apparently threatening and menacing danger is only expected to act as a reasonably prudent person would act under similar circumstances and surroundings. “Under such circumstances they ordinarily have but a moment for deliberation and decision. It might so happen that as a matter of fact they could have done any one of a number of other things, and thereby have avoided the danger and refrained from committing the homicide. After they have acted, they cannot be judged from the theoretical standpoint of the man who is resting in both apparent and real safety, confronted by no danger, and menaced by no threats or demonstrations of sudden violence and felonious import. He must act quickly. He must act as a reasonable and prudent man would be likely to act under similar conditions and circumstances, and this is all the law, reason, or justice demands.”  

For centuries now, it has been the law of the United States that if a person is where he has the right to be, when someone advances upon him in a threatening manner, and with a deadly weapon; and if that person did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

This case also presents the issue of Idaho’s codification of the common law fleeing felon rule.  Despite this codification, the U.S. Supreme Court has declared that “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.”  The court declared, deadly force may not be used in such circumstances unless “it is necessary to prevent the escape and the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others.”  Thus, in order to apply the fleeing felon statute, 1) the officer must be preventing an escape and 2) the suspect must pose a significant threat of serious physical injury to the officer or others.

The burden is on the prosecution to prove beyond a reasonable doubt that the asserted act of self-defense was not justifiable.  If there is a reasonable doubt whether the asserted act of self-defense was justifiable, a person cannot be found guilty under the law.

LEGAL ANALYSIS

This case is analyzed to determine whether Trooper Larrea’s actions arise to the level of an aggravated assault or battery. A primary element of aggravated assault or battery is that the use of force was unlawful. In this case, as an element of the criminal prosecution, the State is required to prove beyond a reasonable doubt that Trooper Larrea was not justified under principles of self-defense in shooting and/or shooting at Mr. Cortez.

Justifiable Homicide v. Justifiable Battery. This case is being reviewed as a use of force that did not result in death, and thus an assault and not a homicide. However, given the officer’s use of deadly force (force likely to produce death or serious bodily injury), the analysis has very little distinction. The standard in either case, is whether Trooper Larrea was confronted with the present and imminent threat of death or serious bodily injury.

The officer’s action was within the discharge of her legal duty as a peace officer. Trooper Larrea was on duty and was conducting a traffic stop. In this case, it was reasonable and within the scope of her duties to conduct a traffic stop.

The officer was in a place where he had a right to be. Trooper Larrea was conducting a lawful traffic stop, in a public parking lot of a public lodging at (Candlewood Suites, 665 Pancheri Dr, Idaho Falls, Idaho). This establishment is open to the public. There is no basis to believe that Mr. Cortez had the right to exclude the trooper from the premises.

The officer was resisting a public offense. During the contact, Mr. Cortez became agitated and produced a semi-automatic firearm. Under Idaho law, assault is defined as “An unlawful attempt, coupled with apparent ability, to commit a violent injury on the person of another,” or an “intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.  An assault becomes defined as aggravated when it is committed with a deadly weapon or instrument without intent to kill; or by any means or force likely to produce great bodily harm.  Assault with Intent to Commit a Serious Felony is defined as an assault upon another with intent to commit murder, rape, mayhem, robbery, or lewd and lascivious conduct with a minor child.  Therefore, in this case, whether or not Mr. Cortez actually intended to kill Trooper Larrea with his actions does not change the legal analysis of whether Trooper Larrea’s reaction was justified.

The officer did not provoke the threatening behavior. Trooper Larrea maintained a calm, non-threatening demeanor throughout her contact with Mr. Cortez. Her questions were intended to illicit information to forward the purposes of the stop and to ensure her personal safety. These concerns were justified and reasonable based on Mr. Cortez’s furtive movements.

Prior to Mr. Cortez producing the firearm, Trooper Larrea made no threatening or provocative statements (“fighting words”) and made no threatening gestures. Upon review of the video from Trooper Larrea’s dash camera, I conclude all statements and acts by Trooper Larrea were consistent with common law enforcement training for dealing with traffic stops. During the contact, Mr. Cortez appeared agitated and was making furtive movements. I found nothing that Trooper Larrea said or did that would have reasonably provoked a rational person to react in the violent and threatening manner Mr. Cortez exhibited.

Objectively Reasonable Fear

The officer reacted to a reasonable appearance of danger. Mr. Cortez produced a firearm and actively shot at Trooper Larrea and Officer Bierma. He then fled, engaging the officers in a running gunfight. Indisputably, a firearm can be used to cause serious bodily injury or death. Mr. Cortez was actively shooting in her direction, or the direction of Officer Bierma, and the perception that Mr. Cortez constituted an immediate threat to Trooper Larrea and Officer Bierma was reasonable.

Mr. Cortez’s actions created a present and imminent danger of death or great bodily harm to the officers. Mr. Cortez was within a few feet when he fired at Trooper Larrea. Mr. Cortez was firing at Officer Bierma when he was in a position of disadvantage sitting in the driver’s seat operating his vehicle, which restricted his movements and ability to take cover or return fire. Trooper Larrea and Officer Bierma continued to fire at Mr. Cortez in a running gun battle. Mr. Cortez presented not only a risk to the officers but to the public.

Objectively Reasonable force

The officer was justified in using deadly force because the officer had probable cause to believe that Mr. Cortez’ actions posed a threat of death or serious physical injury to the officer. There can be no dispute that shooting a firearm at someone constitutes a threat of serious bodily injury or death. Trooper Larrea initially was within a few feet of the firearm and heard multiple gunshots from the firearm, and its nature was easily recognizable. She also was able to observe Mr. Cortez assume a standing shooter’s stance outside the vehicle, as he fired at Officer Bierma. Once the assailant pulled and fired a deadly weapon, Trooper Larrea had reasonable cause to believe that Mr. Cortez’s actions in this case posed a threat of death or serious physical injury to herself and others. As a matter of law, Trooper Larrea had a right to fire her weapon at Mr. Cortez after Mr. Cortez fired at her and Officer Bierma.

The officer’s action was necessary to save herself and Officer Bierma from the danger presented. Trooper Larrea, within an extremely close proximity to the gun, had to quickly act to stop the threat. Likewise, Officer Bierma was shot at while his movement was restricted in the driver’s seat of the vehicle. Both of these threats justified the use of deadly force.

As described above, the law does not allow speculation whether the officer could safely have retreated, but must respect that Trooper Larrea was entitled to “meet any attack made upon [her] with a deadly weapon, in such way and with such force as, under all the circumstances, [she], at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save [her own or another’s] life, or to protect [herself or another] from great bodily injury.”  I find no evidence that Trooper Larrea “failed to react as a reasonable and prudent man would be likely to act under similar conditions and circumstances,” and “this is all the law, reason, or justice demands.”  I likewise find no reason based on the circumstances reviewed in this case to believe that any such reasonable alternatives to the use of deadly force even existed.

The officer’s actions are judged on the facts and circumstances which existed at the time of the officer’s actions. I find no evidence that Trooper Larrea misjudged the situation. The investigation has likewise not uncovered any evidence that the facts and circumstances are different than they were initially perceived. The facts and circumstances are legally conclusive and frankly difficult to dispute given the video recordings of the incident.

Final Considerations

There is no evidence that the officer was acting with any other motivation than self-defense.

Under Idaho law, Trooper Larrea cannot be placed in legal jeopardy of any kind whatsoever for protecting herself by reasonable means necessary, from becoming the victim of aggravated assault or attempted murder.  As described above, I conclude that Trooper Larrea was protecting herself and Officer Bierma from an aggravated assault and/or an attempted murder.

The evidence also supports the finding that after committing these offenses, Mr. Cortez, attempted to escape, and posed a significant threat of serious physical injury to the officer or others. Thus, deadly force was reasonable under I.C. § 18-4009(d).

It is now the law in the United States, that the burden of proof is on the prosecution to prove beyond a reasonable doubt that an accused defendant did not act in self-defense.  In this case, I conclude given the state of the evidence that to the contrary, it is beyond a reasonable doubt that Trooper Larrea in fact acted in self-defense. And further, I find Trooper Larrea’s actions commendable and heroic, potentially saving Officer Bierma’s life as he was arriving in a vulnerable position.

CONCLUSION

For the reasons described above, it is my conclusion that Trooper Larrea’s actions at the Candlewood Suites in Idaho Falls on December 4, 2023, were JUSTIFIED under Idaho law as an act of self-defense. Further, I conclude that Trooper Larrea was protecting herself by reasonable means necessary from an aggravated assault and/or attempted murder, and likewise protecting Officer Bierma from the same, and thus Idaho law prohibits placing her in “legal jeopardy of any kind whatsoever.”  Therefore, any prosecution for her actions must be DECLINED.

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