                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                           Docket No. 39269

STATE OF IDAHO,                                     )
                                                    )     2012 Opinion No. 45
           Plaintiff-Respondent,                    )
                                                    )     Filed: August 27, 2012
v.                                                  )
                                                    )     Stephen W. Kenyon, Clerk
HENRY ROY LOMAN,                                    )
                                                    )
           Defendant-Appellant.                     )
                                                    )

           Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
           Falls County. Hon. Randy J. Stoker, District Judge.

           Order denying motion to suppress evidence, affirmed.

           Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy
           Appellate Public Defender, Boise, for appellant.

           Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
           Attorney General, Boise, for respondent.
                     ________________________________________________
LANSING, Judge
           Henry Roy Loman appeals from his judgment of conviction, on a conditional guilty plea,
for possession of methamphetamine.          We are asked to decide whether Loman, after being
informed that he would be arrested, successfully insulated his coat from a lawful search incident
to the arrest by removing the coat and tossing it into his car before he was restrained by the
officer.
                                                   I.
                                           BACKGROUND
           According to evidence presented at a hearing on Loman’s suppression motion, Officer
Timothy Arrendondo of the Twin Falls Police Department was on routine patrol on a cold winter
day in 2011 when he observed a vehicle being driven by Loman. Officer Arrendondo knew
Loman from prior law enforcement contacts, including an arrest on a methamphetamine charge
three years earlier. Arrendondo ran a records check and discovered that Loman was wanted on

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an outstanding arrest warrant. As Officer Arrendondo watched, Loman parked, and he and his
passenger, Tex Mason, entered a residence. Arrendondo decided to wait for the men to return to
Loman’s vehicle and parked his patrol car in an alleyway where he had a view of the Loman
vehicle but could not easily be seen. While waiting, Arrendondo called for a backup officer.
       A short time later, the two men emerged from the residence, and as they were reentering
the car the backup officer drove his cruiser past the Loman vehicle but did not stop. Arrendondo
observed that the two men showed interest in the movements of the cruiser, watching as it
continued further down the street. According to Arrendondo, the men looked around in all
directions as if checking to see whether other police were in the area. The two men then sat in
the vehicle “for quite a while” with the engine running. Arrendondo observed Loman, now in
the passenger seat, with Mason in the driver’s seat, “hunched down messing with something.”
The officer then pulled in behind the vehicle and activated his overhead lights.
       Loman immediately got out of his vehicle and began walking toward Arrendondo. The
officer, feeling threatened, drew his service weapon, told Loman that he had a warrant for his
arrest, and ordered Loman to place his hands on the vehicle. Loman initially complied, but when
the officer holstered his weapon and ordered Loman to place his hands behind his back Loman
started to take off his coat. The officer told Loman to leave his coat on and comply with his
orders, but Loman pulled away, took his coat off, threw it on the passenger seat of his car, and
shut the door. Arrendondo ordered Mason to keep his hands on the steering wheel and, with the
assistance of the backup officer, handcuffed Loman. Arrendondo then opened the passenger
door, removed Loman’s coat, and threw it on the ground. While the backup officer walked
Loman back to the transport vehicle, Arrendondo searched the coat. He found a flashlight in a
coat pocket and discovered methamphetamine and a glass pipe inside the flashlight.
       Loman was charged with possession of methamphetamine and possession of drug
paraphernalia. He filed a motion to suppress the evidence found in his coat, contending that the
warrantless search of the coat was unlawful. The district court denied the motion. Loman then
reached a plea agreement whereby the paraphernalia charge was dismissed and he pleaded guilty
to possession of methamphetamine, reserving the right to appeal the denial of his suppression
motion. Loman appeals from the resulting judgment of conviction.




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                                                II.
                                           ANALYSIS
       On review of a decision granting or denying a suppression motion, we accept the trial
court’s findings of fact that are supported by substantial evidence, but we freely review the
application of constitutional principles to the facts as found. State v. Atkinson, 128 Idaho 559,
561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression hearing, the power to assess the
credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is
vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995);
State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659, 662 (Ct. App. 1999).
       The Fourth Amendment of the United States Constitution guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” Searches conducted without a warrant are presumed to be unreasonable and
therefore violative of the Fourth Amendment.          The State may overcome this presumption,
however, by demonstrating that the search falls within a well-recognized exception to the
warrant requirement or was otherwise reasonable under the circumstances. State v. Weaver, 127
Idaho 288, 290, 900 P.2d 196, 198 (1995); State v. Stewart, 152 Idaho 868, 869, 276 P.3d 740,
741 (Ct. App. 2012).
       Here, the district court denied Loman’s suppression motion on a determination that the
search of Loman’s coat fell within the warrant exception for searches incident to the arrest of an
individual. See Chimel v. California, 395 U.S. 752, 762-63 (1969); State v. Robertson, 134
Idaho 180, 186, 997 P.2d 641, 647 (Ct. App. 2000). The district court reasoned that because
Loman’s coat was part of his person when the officer announced that he was under arrest, Loman
could not thereafter effectively make it not part of his person by removing it and placing it in the
vehicle. For this proposition, the district court relied upon State v. Bowman, 134 Idaho 176, 997
P.2d 637 (Ct. App. 2000), where a man who had been detained by an officer for investigative
purposes removed his jacket and gave it to a woman who was standing nearby. The officer
subsequently determined that there existed a warrant for the man’s arrest, placed him under
arrest, and then obtained the jacket from the woman and searched it. We there held that the
officer’s search of the jacket was a valid search incident to the man’s arrest. Id. at 180, 997 P.2d
at 641. On appeal, Loman argues that Bowman is distinguishable and, further, that its analysis is




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called into question by the United States Supreme Court’s subsequent decision in Arizona v.
Gant, 556 U.S. 332 (2009).
        We conclude that it is unnecessary to address Loman’s argument that the search of his
coat was not justifiable as a search incident to his arrest, for the search falls squarely within
another exception to the warrant requirement that was argued by the State both below and on
appeal, the automobile exception.    Under the long-recognized automobile exception, police
officers having probable cause to believe that an automobile contains contraband or evidence of
a crime may search the automobile without a warrant. Wyoming v. Houghton, 526 U.S. 295, 300
(1999); State v. Gallegos, 120 Idaho 894, 897-98, 821 P.2d 949, 952-53 (1991); State v. Johnson,
152 Idaho 56, 61, 266 P.3d 1161, 1166 (Ct. App. 2011); State v. Smith, 152 Idaho 115, 120, 266
P.3d 1220, 1225 (Ct. App. 2011); State v. Newman, 149 Idaho 596, 599, 237 P.3d 1222, 1225
(Ct. App. 2010). A warrant is not obligatory in this circumstance because there is a lesser
expectation of privacy in automobiles than in homes or in one’s person and because the “ready
mobility” of an automobile creates the risk that evidence will be permanently lost while a
warrant is obtained. Houghton, 526 U.S. at 304; United States v. Ross, 456 U.S. 798, 820-21
(1982). The search of an automobile on probable cause may include opening any containers
within the vehicle that could hold the suspected evidence. Houghton, 526 U.S. at 306; Ross, 456
U.S. at 820-21.
        Probable cause is a flexible, common-sense standard.          A practical, nontechnical
probability that incriminating evidence is present is all that is required. Texas v. Brown, 460
U.S. 730, 742 (1983). Probable cause does not require an actual showing of criminal activity,
but only the probability or substantial chance of such activity. Illinois v. Gates, 462 U.S. 213,
243-44 n.13 (1983). The facts known to the officers must be judged in accordance with the
factual and practical considerations of everyday life on which reasonable and prudent people act.
Id. at 231.
        Here, the officer knew that Loman had previously been arrested on a methamphetamine
charge and he observed Loman and Mason enter and exit a residence, staying only a short time,
and then engage in activity in the car consistent with drug use. When the officer announced to
Loman that he was about to be arrested and searched, Loman ignored the officer’s commands to
leave his coat on and place his hands behind his back. Instead, despite the cold temperature and
despite having just been instructed by an officer holding an unholstered firearm, Loman tried to


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distance himself from the coat and prevent it from being searched. He pulled away from the
officer, tore his coat off, threw it in the car, and shut the door. Under the totality of these
circumstances and applying common sense, these facts gave rise to probable cause to believe that
the coat contained drugs or some other contraband that Loman rather desperately wanted to keep
away from the officer. Because the coat was in a vehicle, it could lawfully be searched by the
officer without a warrant under the automobile exception. Therefore, the district court correctly
denied Loman’s motion to suppress the fruit of that search.
       The district court’s order denying Loman’s motion to suppress evidence is affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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