               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43194

STATE OF IDAHO,                                )    2016 Unpublished Opinion No. 512
                                               )
       Plaintiff-Respondent,                   )    Filed: April 29, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
CODY PORTER RADFORD,                           )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Richard S. Christensen, District Judge.

       Order denying motion to suppress, affirmed; judgment of conviction and sentence
       of three and one-half years, with a minimum period of confinement of one year,
       for felony reckless driving, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Cody Porter Radford appeals from the district court’s order denying his motion to
suppress evidence found after a traffic stop. Radford also challenges his sentence. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       While driving on the interstate, a witness observed a black Kia SUV traveling in the same
direction, swerving in and out of traffic lanes. After the SUV nearly hit the cement median
several times, the witness dialed 911 from his cell phone. As he was driving, the witness
continued watching the SUV and relayed his observations to the dispatcher over the phone.
Based on the information provided by the witness to the dispatcher, Officer Johnson was able to
spot the black SUV on the interstate. He observed the car “kicking up a lot of dust,” and he

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advised dispatch of the vehicle’s location. Based on the witness’s and officer’s observations,
Corporal Branch was able to locate the black Kia SUV and initiate a traffic stop.
       Once Corporal Branch made contact with Radford, the driver of the SUV, Corporal
Branch noticed Radford’s eyes were red and watery. Suspecting that Radford’s driving might be
impaired, Corporal Branch performed field sobriety tests on Radford, which he passed. Corporal
Branch then spoke on the phone with the witness regarding his observations of the vehicle.
Corporal Branch then arrested Radford for reckless driving. While performing an inventory
search, Corporal Branch found marijuana and a metal container with two needles inside. The
State charged Radford with trafficking in marijuana, Idaho Code § 37-2732B(a)(1); possession
of a controlled substance, I.C. § 37-2734A(1); possession of drug paraphernalia, I.C. § 37-
2734A(1); and reckless driving, I.C. § 49-1401(1). Radford filed a motion to suppress, asserting
that the traffic stop and arrest were unlawful. The district court denied the motion. Radford
entered a conditional guilty plea to an amended charge of possession of marijuana with intent to
deliver, reserving his right to appeal the denial of his suppression motion. The state dismissed
the remaining charges. The district court sentenced Radford to a unified three and one-half-year
sentence, with one year determinate. Radford timely appeals.
                                                II.
                                           ANALYSIS
A.     Motion to Suppress
       Radford first contends that the district court erred by denying his motion to suppress.
The standard of review of a suppression motion is bifurcated. When a decision on a motion to
suppress is challenged, 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).
       In his motion to suppress, Radford first contended that the stop was unlawful because it
was not supported by reasonable suspicion. A traffic stop by an officer constitutes a seizure of
the vehicle’s occupants and implicates the Fourth Amendment’s prohibition against unreasonable

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searches and seizures. Delaware v. Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at
561, 916 P.2d at 1286.      Under the Fourth Amendment, an officer may stop a vehicle to
investigate possible criminal behavior if there is a reasonable and articulable suspicion that the
vehicle is being driven contrary to traffic laws. United States v. Cortez, 449 U.S. 411, 417
(1981); State v. Flowers, 131 Idaho 205, 208, 953 P.2d 645, 648 (Ct. App. 1998).               The
reasonableness of the suspicion must be evaluated upon the totality of the circumstances at the
time of the stop. State v. Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The
reasonable suspicion standard requires less than probable cause but more than mere speculation
or instinct on the part of the officer. Id. An officer may draw reasonable inferences from the
facts in his or her possession, and those inferences may be drawn from the officer’s experience
and law enforcement training. State v. Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct.
App. 1988).
       Officers may rely on a 911 caller’s report of dangerous driving in evaluating whether
there is reasonable suspicion to stop a vehicle. See Navarette v. California, ___ U.S. ___, 134
S. Ct. 1683 (2014). In Navarette, an anonymous 911 caller reported that another driver had run
her off the road and provided the dispatcher with the location of the incident as well as the
vehicle’s description and license plate number. Id. at ___, 134 S. Ct. at 1686-87. Shortly
thereafter, an officer located the described vehicle near the location of the incident. Id. at ___,
134 S. Ct. at 1689. The Supreme Court held that the contemporaneous eyewitness account by
the 911 caller, which was corroborated by the officer’s ability to locate the vehicle, established
reasonable suspicion of drunk driving when viewed objectively from the perspective of a
reasonable police officer. Id.
       Here, the 911 caller was contemporaneously informing the dispatcher about his
observations of the vehicle as he witnessed it being driven.        He described the vehicle as
repeatedly swerving outside the lanes of traffic, nearly hitting the cement median wall on several
occasions. Officers were then able to locate the vehicle based upon the caller’s description of the
vehicle and its location. Just as the Court in Navarette held that the contemporaneous eyewitness
account of dangerous driving, combined with police corroboration in locating the vehicle, was
enough to establish reasonable suspicion of drunk driving to justify a traffic stop, the eyewitness
account and corroboration by Officer Johnson and Corporal Branch was enough to establish
reasonable suspicion of Radford’s unlawful driving to justify a traffic stop of Radford. Thus, the

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district court did not err in finding the stop was supported by reasonable suspicion based upon
the totality of the circumstances.
       In his motion to suppress, Radford also asserted that the warrantless arrest was not
supported by probable cause. A warrantless arrest is lawful if the arresting officer has probable
cause to believe the arrestee has committed a public offense in his presence or has committed a
felony not in his presence. I.C. § 19-603. Additionally, “[t]he authority to make an arrest is the
same as upon an arrest for a felony when any person is charged with . . . [r]eckless driving.” I.C.
§ 49-1405(1)(f). Reckless driving is defined as operating a vehicle “carelessly and heedlessly or
without due caution and circumspection, and at a speed or in a manner as to endanger or be
likely to endanger any person or property. . . .” I.C. § 49-1401(1). Probable cause requires the
officer to possess information that would lead a person of “ordinary care and prudence to believe
or entertain an honest and strong suspicion that such person is guilty.” State v. Alger, 100 Idaho
675, 677, 603 P.2d 1009, 1011 (1979).
       Here, the officer did not see Radford’s erratic driving.         However, the 911 caller’s
description of witnessed events to the dispatcher was sufficient to establish an honest and strong
suspicion that Radford was guilty of driving recklessly. Radford’s conduct of swerving outside
of traffic lanes and nearly hitting the cement median wall was likely to endanger himself, other
individuals, or property. Therefore, the district court did not err in finding the officer had
probable cause that Radford committed the crime of reckless driving to justify a warrantless
arrest. Thus, because the officer had reasonable suspicion to justify the traffic stop and probable
cause to justify the arrest, the district court did not err in denying Radford’s motion to suppress.
B.     Sentence
       Radford next contends that his sentence is excessive in light of the mitigating evidence.
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,

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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, 726, 170 P.3d 387, 391 (2007).
       Here, when sentencing Radford, the district court considered the Toohill factors, finding
that Radford displayed an “incredible disrespect for the law.”         The court also considered
Radford’s previous criminal history, acknowledging that Radford had been granted numerous
chances to show respect for the law. The court imposed a unified sentence of three and one-half
years, with one year determinate.      Upon review of the record in this case, including the
mitigating factors, we cannot say that Radford’s sentence is unreasonable. Therefore, the district
court did not abuse its discretion.
                                                III.
                                         CONCLUSION
       The district court did not err in denying Radford’s motion to suppress. Corporal Branch
had reasonable suspicion to justify stopping Radford’s vehicle based on the corroborated 911
witness testimony and to justify the arrest based upon the witness’s observation that Radford was
driving recklessly. Additionally, the district court did not abuse its discretion in imposing
sentence.   Accordingly, we affirm both the order denying the motion to suppress and the
judgment of conviction and sentence.
       Judge GRATTON and Judge HUSKEY CONCUR.




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