               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 42787

STATE OF IDAHO,                                  ) 2015 Opinion No. 50
                                                 )
       Plaintiff-Respondent,                     ) Filed: August 14, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
SCOTT ANDREW KINCH,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Judgment of conviction for possession of a controlled substance, affirmed.

       Michael Jacques of Jacques Law Office, P.C., Caldwell, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Scott Andrew Kinch appeals from his judgment of conviction for possession of a
controlled substance.   Kinch asserts that the district court erred by denying his motion to
suppress in which he argued that his traffic stop was not supported by reasonable suspicion. For
the reasons set forth below, we affirm.
                                                 I.
                                 FACTS AND PROCEDURE
       An officer stopped Kinch’s vehicle after observing that the vehicle did not have license
plates. Although a temporary registration permit was taped in the top left corner of the vehicle’s
back window, the officer could not read the permit because it was bent, somewhat crumpled, and
obscured by a layer of condensation on the window in the area where it was taped. After
approaching the vehicle, the officer still could not read the permit due to the condensation and


                                                 1
the bend in the paper. The officer informed Kinch that she stopped him because she was unable
to read the temporary permit. After obtaining Kinch’s license and the temporary registration
permit, the officer asked Kinch if he had anything illegal in the vehicle. Kinch admitted that he
had a pipe in his stocking cap on the passenger seat. The officer seized the pipe and cited Kinch
for possession of drug paraphernalia. Subsequent testing on a white powder residue in the pipe
confirmed the presence of methamphetamine.            Kinch was then additionally charged with
possession of a controlled substance and a sentencing enhancement for being a persistent violator
of the law.
       Kinch filed a motion to suppress, arguing that the officer’s inability to read the temporary
registration permit did not provide reasonable suspicion to perform the traffic stop. After a
hearing at which only the officer testified, the district court denied Kinch’s motion to suppress.
It held that the officer had reasonable suspicion to stop Kinch because the temporary registration
permit was not readily legible, as required by statute. Kinch filed a motion to reconsider based
on new evidence--the video of the traffic stop. The district court denied Kinch’s motion after a
hearing, finding that the video supported its prior ruling. Pursuant to a plea agreement, Kinch
pled guilty to possession of a controlled substance, I.C. § 37-2732(c)(1), and preserved his right
to appeal the denial of the motion to suppress. In exchange, the state dismissed the paraphernalia
charge and sentencing enhancement. The district court sentenced Kinch to a unified term of
seven years, with a minimum period of confinement of one and one-half years. Kinch appeals.
                                                II.
                                   STANDARD OF REVIEW
       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).




                                                 2
                                                 III.
                                            ANALYSIS
         Kinch argues that the district court erred in denying his motion to suppress on two bases.
First, he asserts that the district court’s findings of fact were not supported by substantial and
competent evidence based on Kinch’s interpretation of the condition of the temporary
registration permit as shown in the video of the traffic stop. Second, he contends that the district
court erred in its interpretation of I.C. § 49-432(4), which governs the placement of temporary
registration permits. Thus, he claims that his traffic stop was not supported by reasonable
suspicion and, therefore, violated his rights under both the United States and Idaho
Constitutions. 1
         A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates
the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v.
Prouse, 440 U.S. 648, 653 (1979); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286
(Ct. App. 1996). 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).




1
       Although Kinch contends that both constitutions were violated, he provides no cogent
reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the
Fourth Amendment to the United States Constitution in this case. Therefore, the Court will rely
on judicial interpretation of the Fourth Amendment in its analysis of Kinch’s claims. See State v.
Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).

                                                  3
A.     Findings of Fact
       When reviewing an order granting or denying a motion to suppress, we accept the trial
court’s factual findings unless the defendant shows that they are clearly erroneous. State v.
Munoz, 149 Idaho 121, 128, 233 P.3d 52, 59 (2010); State v. Kinser, 141 Idaho 557, 560, 112
P.3d 845, 848 (Ct. App. 2005). Findings of fact are not clearly erroneous if they are supported
by substantial and competent evidence. State v. Bishop, 146 Idaho 804, 810, 203 P.3d 1203,
1209 (2009); State v. Davis, 139 Idaho 731, 734, 85 P.3d 1130, 1133 (Ct. App. 2003). As noted
above, we will not substitute our view for that of the trial court as to the credibility of the
witnesses, the weight to be given to testimony, and the reasonable inferences to be drawn from
the evidence. Valdez-Molina, 127 Idaho at 106, 897 P.2d at 997; Schevers, 132 Idaho at 789,
979 P.2d at 662.
       Kinch contends that the district court erred in crediting the officer’s testimony and
finding that the temporary permit was “bent, crumpled, unreadable” and obscured by a “fogged
over” window. Instead, Kinch argues that the video clearly shows a “flat, crisp, paper document
that is not crumpled.” The low-resolution video of the traffic stop fails to settle whether the
temporary permit was displayed as Kinch now contends or as the officer testified and the district
court found. However, the video tended to support the officer’s testimony that she could not
readily view the information on the temporary permit even after approaching the vehicle due to
the condition of the permit and condensation on the window where the permit was placed. The
video showed that the bottom right corner of the permit was bent. 2 Additionally, the officer
stated to Kinch that the permit was unreadable and, after removing it from the window,
specifically pointed out to Kinch and illuminated with her flashlight the opaque condensation
blocking view of the permit. This, combined with the officer’s consistent testimony at the
suppression hearing, provided substantial and competent evidence supporting the district court’s


2
        Kinch contends that this bend did not obstruct the visibility of the information on the
temporary permit; however, this claim is unsupported by either the video or any other evidence
in the record. On the contrary, the legibility of the permit and how that was affected by the bend
cannot be determined by the video alone, and the record does not include a copy of the
temporary registration permit. As a result, the officer’s testimony provides the most substantial
and competent evidence of the temporary permit’s condition.



                                                4
conclusion that the temporary permit was not readily legible as displayed. Accordingly, we will
not disturb these factual findings on appeal.
B.     Statutory Interpretation
       Kinch next contends that the district court erred in interpreting I.C. § 49-432(4) 3 and,
specifically, the term “readily legible” as used in the statute. This Court exercises free review
over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d
1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this
Court must give effect to the statute as written, without engaging in statutory construction. State
v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387,
389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious,
and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. 4
       Kinch contends that his temporary permit was not required to be readily legible from the
vantage point of a police vehicle or any vehicle on the road. Instead, he claims the permit
needed only to be readily legible “upon a closer inspection.” Kinch provides no support for this
reading of the statute aside from a reference to I.C. § 49-443(1), which governs the size and
nature of license plates so that they may be visible during daylight hours from a distance of
75 feet. 5 This difference in purpose, along with the nighttime circumstances present here, make
this statute irrelevant to Kinch’s case.


3
        This statute requires that the temporary registration be posted “upon the windshield . . . or
in another prominent place, where it may be readily legible.”
4
      Neither party argued, either below or on appeal, that the statute is ambiguous.
Accordingly, we proceed with a review of the plain language of the statute.
5
       Idaho Code Section 49-443(1) provides, in pertinent part:
               Every license plate shall have displayed upon it the registration number
       assigned to the vehicle and its owner and the name “Idaho” which may be
       abbreviated. The plates issued under the provisions of section 49-402(1), Idaho
       Code, and the required letters and numerals, including an identification of the
       county in which the motor vehicle to which the plates will be affixed is registered,
       shall be of sufficient size to be plainly readable from a distance of seventy-five

                                                 5
       Similarly, in his reply brief, Kinch argues that I.C. § 49-429 6 addresses an analogous
issue of the placement of applications for specialty license plates, so the lack of certain language
in that statute--specifically, any requirement that the application be legible or even readable--
should impact the interpretation of I.C. § 49-432(4) at issue here. See State v. Yager, 139 Idaho
680, 690, 85 P.3d 656, 666 (2004) (holding that where a statute addressing one subject contains a
certain provision, the omission of that provision from a similar statute addressing a related
subject is significant to show that a different intent existed). Kinch’s comparison provides no
support for his claim that the permit must only be readily legible upon closer inspection. On the
contrary, I.C. § 49-429 provides a blanket statement that mere display of an application
constitutes compliance with the requirements of the chapter until the motorist receives the
specialty plates. The statute makes no mention of whether the application or its information
must be readily legible, readable, or even viewable.
       Conversely, I.C. § 49-432(4) provides that the temporary permit must be displayed in a
prominent place so as to be “readily legible.” This shows an intent by the legislature that, unlike
applications for specialty plates, temporary permits must be visible (indeed, readily legible)
while displayed on a vehicle. Moreover, as noted by the state, the readily legible requirement for
posting a temporary permit applies “at all times while the vehicle is being operated on the
highways.” Id. Kinch’s argument that a temporary permit need only be readily legible upon
closer inspection, such as when one is right next to the vehicle while it is stopped, ignores the




       (75) feet during daylight, and each license plate and registration sticker shall be
       treated with a fully reflectorized material according to specifications prescribed
       by the board.
6
       Idaho Code Section 49-429 provides:
              When an owner chooses to display special license plates, upon payment of
       required fees the department or the assessor shall issue to the applicant a copy of
       the application. The copy must be displayed in a suitable place on the rear
       window of a motor vehicle, or if a motorcycle, displayed on the motorcycle. The
       copy shall constitute compliance with the provisions of this chapter until such
       time as the license plates are received from the department. The copy of the
       application shall not have any value as compliance with the provisions of this
       chapter from and after the receipt of the license plates from the department.

                                                 6
plain language of the statute requiring that the permit be readily legible while the vehicle is being
driven. Thus, although the statute does not explicitly provide that the temporary permit must be
readily legible from the vantage point of another vehicle on the road, the context of the statute
and its plain language make that implication clear.
         Kinch further contends that, if the legislature had intended for a temporary permit to be
readily legible from the vantage point of another vehicle, it would have used the word “readable”
instead; however, “legible” is a synonym for “readable.” See WEBSTER’S NEW INTERNATIONAL
DICTIONARY 1889 (3d ed. 1993) (defining readable as “that can be read with ease,” with
“legible” as a subdefinition); id. at 1291 (defining legible as “capable of being read or
deciphered”     and    “distinct   to   the   eye”);    see   also    Legible,   DICTIONARY.COM,
http://dictionary.reference.com/browse/legible (last visited July 24, 2015) (defining legible as
“capable of being read or deciphered, especially with ease, as writing or printing; easily
readable”); Readable, DICTIONARY.COM, http://dictionary.reference.com/browse/readable (last
visited July 24, 2015) (defining readable as “capable of being read; legible”). Moreover, the use
of the adverb “readily” shows that the legislature intended for the information on temporary
registration permits to not merely be visible, but easily readable--an addition only necessary if
viewing the temporary registration permit from some distance away. 7 See WEBSTER’S NEW
INTERNATIONAL DICTIONARY at 1889 (defining “readily” as “with a fair degree of ease,”
“without much difficulty,” and “easily”). As a result, Kinch’s attempt to distinguish these terms
fails.
         Kinch next argues that, under the interpretation of I.C. § 49-432(4) employed in State v.
Salois, 144 Idaho 344, 160 P.3d 1279 (Ct. App. 2007), the officer’s inability to read the properly
displayed permit did not provide reasonable suspicion to perform the stop.            In Salois, the
defendant was stopped based solely on the display of a temporary registration permit. No
evidence was presented indicating that the officer was unable to read the permit either from the
vantage point of his vehicle or upon closer inspection. We rejected the state’s argument that the

7
        The statute does not provide any specific distance from which the temporary permit must
be readily legible. However, we need not resolve this issue, as Kinch does not challenge the
distance from which the officer observed the temporary permit, and the officer testified that,
even while right next to Kinch’s vehicle, she was unable to read the contents of the temporary
permit.

                                                 7
mere presence of a temporary permit provided reasonable suspicion to perform a traffic stop and
held the following:
       [T]he presence of a properly displayed temporary permit, subject to the discussion
       below, dispels any reasonable suspicion of a violation of I.C. § 49-456(1). To
       hold otherwise would allow law enforcement officers of this state unfettered
       discretion to stop each and every vehicle being operated with a temporary
       registration to “investigate” its validity. To the contrary, an officer must have a
       reasonable suspicion of criminal activity before a traffic stop is initiated, not after.
       A temporary permit displayed in compliance with I.C. § 49-432([4]) carries with
       it a presumption of validity, not of invalidity. The mere existence of the properly
       placed temporary permit cannot serve as the basis for reasonable suspicion to
       allow an officer to stop a vehicle to inspect the permit unless the invalidity of the
       permit, such as by improper alteration, is obvious and discernable by the officer
       prior to stopping the vehicle. The State’s position would allow law enforcement
       officers to presume that temporary permits are invalid per se, justifying an officer
       to stop a vehicle in order to conduct further inspection concerning the legitimacy
       of the temporary permit. We reject that position.
Id. at 348, 160 P.3d at 1283.
       Kinch argues that this holding precludes a finding of reasonable suspicion due to the
temporary permit not being readily legible. Our holding in Salois was dependent on the presence
of a properly displayed temporary permit, meaning one that was displayed in compliance with
I.C. § 49-432(4). Salois, 144 Idaho at 348, 160 P.3d at 1283. Based on the plain language of
that statute, a temporary permit is properly displayed only when it is both posted upon the
windshield of each vehicle or in another prominent place and readily legible in that posted
location. See I.C. § 49-432(4). Thus, a temporary permit is not properly displayed if it is not
readily legible. We need not determine whether it must be readily legible from the vantage point
of another vehicle or upon closer inspection because it was not readily legible in either case
here. 8 As a result, the presumption of validity discussed in Salois does not apply to a temporary
permit that is not readily legible because such is not properly displayed as required by the statute.
       We hold that an improperly displayed temporary permit, including one that is not readily
legible, provides reasonable suspicion to perform a traffic stop. The inability to easily read the


8
       We note, however, that the requirement in Salois that the officer must have reasonable
suspicion that the temporary permit violates the law before initiating the traffic stop strongly
suggests that the permit must be readily legible from the officer’s vehicle, at least at some
distance, otherwise a stop could never be initiated.

                                                  8
key information of a temporary registration permit (such as its expiration date), whether upon
closer inspection or from the vantage point of a nearby vehicle, raises a reasonable and
articulable suspicion beyond mere intuition or speculation that the temporary permit may be
expired or invalid. Thus, the officer here had reasonable suspicion to stop Kinch’s vehicle, and
the district court did not err in denying Kinch’s motion to suppress on that basis.
                                                IV.
                                         CONCLUSION
       Kinch has failed to show that the district court’s findings of fact were not supported by
substantial and competent evidence. Kinch has also failed to establish that the district court erred
in interpreting I.C. § 49-432(4). Thus, the district court did not err in denying Kinch’s motion to
suppress. Accordingly, Kinch’s judgment of conviction for possession of a controlled substance
is affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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