               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 47199

STATE OF IDAHO,                                 )
                                                ) Filed: June 23, 2020
       Plaintiff-Appellant,                     )
                                                ) Melanie Gagnepain, Clerk
v.                                              )
                                                )
THLA HUM LIAN,                                  )
                                                )
       Defendant-Respondent.                    )
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Rick Carnaroli, District Judge.

       Order granting motion to suppress, reversed.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for respondent. Ben P. McGreevy argued.

                   ________________________________________________

GRATTON, Judge
       The State appeals from the district court’s order granting Thla Hum Lian’s motion to
suppress. The State argues that the district court erred by: (1) finding that the trooper committed
a constitutional violation when searching Lian’s vehicle, and (2) suppressing Lian’s field
sobriety and blood alcohol content (BAC) tests as fruits of the poisonous tree. For the reasons
set forth below, we reverse.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Lian was charged with felony driving under the influence pursuant to Idaho Code §§ 18-
8004, -8005(6). The charges arose after Idaho State Police Trooper Noyes received citizen
reports of an intoxicated driver. When Trooper Noyes spotted a vehicle matching the description
from one of the citizen reports, he began following the vehicle for observation. After following

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the vehicle for a mile, Trooper Noyes decided to make a traffic stop based on his observation that
the driver was swerving back and forth in the lane, repeatedly crossing the centerline, drifting
back over the fog line, getting close to other vehicles, and varying speeds from fifty to ninety-
miles-per-hour. After making the traffic stop and approaching the driver (Lian), Trooper Noyes
noticed that Lian had glassy red eyes. Trooper Noyes asked Lian if he had been drinking and
Lian responded that “he didn’t drink; he was Christian.”
       As Lian searched for his documentation, Trooper Noyes noticed a bag on the floorboard
of the front passenger seat which contained items labeled vineyard. Ultimately, Trooper Noyes
discovered that the bag contained four boxes of unopened wine. While conversing with Lian,
Trooper Noyes heard a plastic bottle tip over in the vehicle. He asked Lian and the passenger to
exit the vehicle in order to conduct a search for open containers. Trooper Noyes searched the
vehicle for the bottle, discovered two half-full Coca-Cola bottles, opened the bottles, and smelled
that they contained alcoholic beverages. 1 Thereafter, the trooper had Lian perform field sobriety
tests. Based upon Lian’s failure of the field sobriety tests, Trooper Noyes arrested Lian. Next,
Lian underwent two breathalyzer tests. The tests returned results of .138 and .137 percent blood
alcohol content.
       As a result of the search and subsequent testing, the State charged Lian with felony DUI.
Lian filed a motion to suppress the evidence obtained as a result of the vehicle search. As
relevant to this appeal, Lian argued that the search of his vehicle was unlawful. The State
contended that the vehicle search was justified under the automobile exception to the warrant
requirement. After a hearing on the motion, the district court determined that the search of the
vehicle was proper incident to a Terry 2 stop. However, the court concluded that opening the
bottles was inappropriate under the plain view doctrine. Consequently, the court suppressed
evidence of the contents of the bottles. In addition, the court suppressed the results of the field
sobriety and BAC tests as fruits of the poisonous tree. Based on the suppression, the district
court granted Lian’s motion to dismiss. The State timely appeals.




1
       The bottle contents ultimately tested positive for alcohol.
2
       Terry v. Ohio, 392 U.S. 1 (1968).
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                                                    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).
                                                    III.
                                            ANALYSIS
       The State argues that the district court erred in its analysis and conclusion in regard to the
constitutionality of Lian’s vehicle search. In addition, the State claims that the district court
erred in suppressing the field sobriety and BAC test results as fruits of the poisonous tree. We
will address each of these contentions in turn below.
A.     Automobile Exception
       The State argues that: (1) the district court improperly failed to apply the automobile
exception; and (2) proper application of the exception justifies Trooper Noyes’ search of the
vehicle and its containers.
       At the motion to suppress hearing, and in its written opposition to Lian’s motion to
suppress, the State argued that the vehicle search was justified because the trooper had probable
cause to search Lian’s vehicle for an open container pursuant to the automobile exception. In its
order partially granting the motion, the district court recognized that the “State invite[d] the
Court to analyze the search of Lian’s vehicle using the automobile exception” but the court
“decline[d] to do so.” After stating that the court would not apply the automobile exception, the
district court explained its decision as follows:
       In the context of open containers, Idaho cases demonstrate that probable cause
       can be established on the basis of visible contraband or the smell of alcohol
       coming from the vehicle. However, even the smell of alcohol which may be
       coming from an occupant may not be enough to justify a search under the
       automobile exception.


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               Trooper Noyes did not detect the smell of alcohol prior to conducting his
       search. Trooper Noyes did not see any open containers or other contraband prior
       to conducting his search. Trooper Noyes justified his search for potential open
       containers on the sound of a plastic bottle tipping over. While this may have
       raised some suspicion on his part that there could be open containers in the
       vehicle, such suspicion does not meet the probable cause standard necessary to
       justify application of the automobile exception. Therefore, Trooper Noyes’
       search of the automobile will be analyzed as a more limited Terry stop.
Ultimately, the court concluded that the search of the vehicle was proper incident to a Terry stop,
but the court suppressed the evidence contained in the bottles under the plain view doctrine.
       On appeal, the parties agree that a Terry stop does not justify the warrantless search of
Lian’s vehicle and the plain view doctrine does not apply to the facts of this case. Thus, the
district court erred in its analysis. Nonetheless, the State claims that the district court should
have applied the automobile exception to justify the vehicle search. First, the State argues that
the district court improperly failed to analyze all of the factors under the totality of the
circumstances because it was under the incorrect assumption that case law required an officer to
see or smell alcohol before he or she could lawfully search a vehicle for an open container
pursuant to the automobile exception. Second, the State argues that the automobile exception
justified the search because, based on the totality of the circumstances, Trooper Noyes had
probable cause to search for an open container. In response, Lian asks this Court to affirm the
district court on the correct legal theory. Lian contends that under the automobile exception, the
vehicle search was unconstitutional because the trooper lacked probable cause to believe that the
vehicle contained evidence of an open container.
       The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. Warrantless searches are presumed to be unreasonable and therefore violative of
the Fourth Amendment. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). The
State may overcome this presumption by demonstrating that a warrantless search either fell
within a well-recognized exception to the warrant requirement or was otherwise reasonable
under the circumstances. Id. One such exception is the automobile exception, under which
police officers may search an automobile and the containers within it when they have probable
cause to believe that the automobile contains contraband or evidence of a crime. Carroll v.
United States, 267 U.S. 132, 153 (1925); State v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949,
953 (1991).


                                                4
       The permissible scope of a warrantless automobile search “is defined by the object of the
search and the places in which there is probable cause to believe that it may be found.” United
States v. Ross, 456 U.S. 798, 824 (1982). “Probable cause is established when the totality of the
circumstances known to the officer at the time of the search would give rise--in the mind of a
reasonable person--to a fair probability that contraband or evidence of a crime will be found in a
particular place.” State v. Anderson, 154 Idaho 703, 706, 302 P.3d 328, 331 (2012). 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); State v. Johnson, 152 Idaho 56, 61, 266 P.3d 1161, 1166 (Ct. App. 2011).
       First, we conclude that the district court erred in failing to analyze whether, based on the
totality of the circumstances, probable cause existed to support the vehicle search under the
automobile exception. It appears from the order (as set forth above) the district court read Idaho
case law to require an officer to: (1) see an open container, or (2) smell alcohol in order to
establish probable cause to search a vehicle for an open container. It is true that generally
automobile searches for open containers have been supported by the fact that the officer sees an
open container or smells alcohol before engaging in the automobile search. See State v. Daily,
164 Idaho 366, 429 P.3d 1242 (Ct. App. 2018); State v. Wigginton, 142 Idaho 180, 125 P.3d 536
(Ct. App. 2005). However, those factors only help establish a “fair probability that contraband
or evidence of a crime will be found” in the vehicle. Anderson, 154 Idaho at 706, 302 P.3d at
331. Idaho case law does not require that those factors be found before the court can conclude
that probable cause supports the search. To the contrary, the district court was required to base
its probable cause determination on the totality of the circumstances. Id. Here, the court
declined to analyze the totality of the circumstances because Trooper Noyes did not see the open
container or smell alcohol. Thus, the court failed to conduct an appropriate probable cause
analysis.
       Second, we conclude that Trooper Noyes had probable cause to search Lian’s vehicle for
an open container. An abundance of factors gave rise to a fair probability that evidence of an
open container would be found in Lian’s vehicle. First, Trooper Noyes received two citizen
reports of an apparently intoxicated individual driving erratically.      Second, Lian’s vehicle
matched the description in the citizen reports. Third, when he was following Lian, the trooper
witnessed Lian’s erratic driving. Lian was crossing between the center and fog lines, swerving

                                                5
close to other vehicles, and varying his speed from fifty to ninety-miles-per-hour. Fourth, upon
stopping Lian, the trooper recognized that Lian had glassy red eyes. The four factors discussed
above all indicate that Lian was driving while intoxicated. 3 Fifth, Trooper Noyes had evidence
that Lian was lying to him when he claimed that he did not drink because he was “Christian.”
Sixth, Trooper Noyes was aware that Lian had four boxes of unopened alcohol in the vehicle.
Finally, after recognizing all of these factors, Trooper Noyes heard a plastic bottle tip over in the
front driver seat of the vehicle. Trooper Noyes testified that his training and experience have
taught him that people who drink and drive often hide alcoholic beverages in soda bottles. He
believed that the bottle was knocked over to hide it from him. A police officer may draw
inferences based on his own experience in deciding whether probable cause exists. Ornelas v.
United States, 517 U.S. 690, 700 (1996). Because Trooper Noyes had overwhelming evidence
that Lian was intoxicated, Lian had unopened alcohol in the vehicle, and Trooper Noyes heard a
half-full bottle tip over, it was objectively reasonable for him to believe he would find an open
container in Lian’s vehicle.     All of those factors, taken together under the totality of the
circumstances, established probable cause to search Lian’s vehicle for an open container.
Accordingly, the vehicle search was justified under the automobile exception to the warrant
requirement.
B.      Fruits of the Poisonous Tree
        The State argues that even if the search of the vehicle or the bottles was unconstitutional,
the district court erred in suppressing the field sobriety and BAC tests as fruits of the poisonous
tree.
        “[S]uppression of evidence under the exclusionary rule is appropriate only where the
challenged evidence is in some sense, whether direct or indirect, the product of illegal
government activity.” State v. Keene, 144 Idaho 915, 918, 174 P.3d 885, 888 (Ct. App. 2007);
see also Segura v. United States, 468 U.S. 796, 815 (1984); State v. McBaine, 144 Idaho 130,
133, 157 P.3d 1101, 1104 (Ct. App. 2007). When “a defendant moves to suppress evidence
allegedly gained through unconstitutional police conduct, the defendant bears an initial burden of
going forward with evidence to show a factual nexus between the illegality and the state’s

3
        This Court has held, in the context of a DUI arrest, that it was reasonable to believe that
evidence of the offense, e.g. alcohol containers or other evidence of alcohol use, might be found
in the vehicle, allowing a search. State v. Cantrell, 149 Idaho 247, 254, 233 P.3d 178, 185 (Ct.
App. 2010).
                                                 6
acquisition of the evidence.” Keene, 144 Idaho at 918, 174 P.3d at 888. Evidence will not be
excluded unless the illegality is at least the “but for” cause of the evidence’s discovery.
McBaine, 144 Idaho at 133, 157 P.3d at 1104. The defendant needs to show that the discovery of
evidence was a product or result of the unlawful police conduct. Id. at 134, 157 P.3d at 1105. If
a defendant fails to meet this burden, his motion to suppress necessarily fails. Id. (“Where a
defendant has not shown the requisite nexus between the unlawful police activity and the
challenged evidence, suppression must be denied.”).         If the defendant makes the requisite
showing, the State bears the ultimate burden of persuasion to prove that the challenged evidence
is untainted. Id. at 133, 157 P.3d at 1104.
        The district court’s complete recitation of the fruit of the poisonous tree doctrine was set
forth in its order as follows:
        To determine whether to suppress evidence as fruit of the poisonous tree, the
        court must inquire into whether the evidence was recovered as a result of the
        exploitation of the unlawful conduct or instead by means sufficiently
        distinguishable to be purged of the primary taint. The State bears the burden of
        showing that the unlawful conduct did not taint the evidence.
Based on this understanding of the doctrine, the court concluded that:
                The State had not carried this burden. Trooper Noyes conducted the field
        sobriety tests only after the Terry violation involving the soda bottles discussed
        above. Trooper Noyes testified that he made the decision to conduct the field test
        prior to conducting the search for the open containers but did not do so because he
        was concerned that the passenger might destroy evidence of an open container.
        This testimony is not persuasive.
                . . . The timing and manner of the search and subsequent field sobriety
        tests supports a finding that the search was conducted to secure additional
        evidence to support conducting such field sobriety tests.
                Trooper Noyes decided to conduct the field sobriety tests based, at least in
        part, on the discovery of open containers of alcohol. This Court is unconvinced
        that had the bottles discovered by Trooper Noyes contained only Coca-Cola he
        would have still conducted the field sobriety tests. The discovery of the open
        containers is so intertwined with Trooper Noyes subsequent actions that it is
        impossible to separate it from them. Thus, the State has failed to carry its burden
        to show that the decision to conduct the field sobriety tests and the evidence
        discovered from such tests were not tainted by the previous unlawful search.
        On appeal, the State contends that: (1) the district court failed to apply the correct legal
standard by improperly shifting the burden to the State before requiring Lian to show, but for the
bottle search, the trooper would not have conducted the field sobriety and BAC tests; and (2) if
the proper legal standard is applied, the bottle search did not cause the discovery of the field

                                                 7
sobriety and BAC test results. We agree with both of the State’s contentions. We conclude that
the district court erred in suppressing evidence of the field sobriety and BAC tests under the
exclusionary rule.
       First, the district court erred by failing to require Lian to meet his burden of showing a
causal connection between the bottle search and the test results.         Instead of imposing this
requirement on Lian, the district court leaped to the State’s burden of persuasion.             This
constitutes error because the State is only required to show that the evidence is untainted after
the defendant shows “but for” causation. McBaine, 144 Idaho at 133, 157 P.3d at 1104. Lian
argues that “by proceeding to the State’s ultimate burden to prove that the challenged evidence
was untainted, the district court effectively ruled that Mr. Lian had met his burden . . . .” We are
not persuaded by this argument and conclude that the district court did not “effectively” rule that
Lian met his burden. It is evident from the court’s order that it did not make a ruling as to Lian’s
burden because: (1) the court did not cite the rule requiring the defendant to meet his burden;
(2) the court did not make one factual finding in regard to Lian’s burden; (3) Lian did not
provide any evidence to show “but for” causation; and (4) the record does not indicate that
Trooper Noyes would have stopped his DUI investigation had he not found an open container in
Lian’s vehicle. Moreover, to accept that a trial court can “effectively” rule that a defendant met
the causal connection burden would eliminate the burden.
       Second, the court’s analysis and its findings, to the extent that they are findings, are
tainted by its unfounded belief that an officer needs more than reasonable suspicion to conduct
field sobriety tests. However, the administration of field sobriety tests are permissible on the
basis of reasonable suspicion of DUI. State v. Buell, 145 Idaho 54, 56, 175 P.3d 216, 218 (Ct.
App. 2008); State v. Ferreira, 133 Idaho 474, 480, 988 P.2d 700, 706 (Ct. App. 1999). The
district court’s misunderstanding is evidenced by the fact that the court had already concluded
that Trooper Noyes had reasonable suspicion of a DUI before searching the vehicle. 4              In

4
        The district court made this conclusion when it applied the Terry test to justify the
vehicle search. During its Terry application, the court stated, “Under the totality of the
circumstances, Trooper Noyes could have reasonable suspicion that Lian was intoxicated and
was justified in conducting the initial search for additional indicators of intoxication such as open
cans or bottles of alcohol.” Although the parties agree that Terry is inapplicable in this case, the
court’s conclusion that Trooper Noyes had reasonable suspicion of a DUI before searching the
vehicle in relation to that analysis illustrates its apparent misunderstanding that Trooper Noyes
needed more evidence before conducting field sobriety tests.

                                                 8
addition, it is clear, from the portions of the order set forth above, that the district court was
under the impression that Trooper Noyes conducted the vehicle search because he needed to
acquire additional evidence of a DUI before he could lawfully conduct the field sobriety and
BAC tests. 5 That was not the case. Thus, the court’s findings and conclusions have no support
in the law or the record.
       Third, the field sobriety and BAC test results were not properly suppressed as fruits of the
poisonous tree. Based on its tainted belief, the court inappropriately concluded that the field
sobriety and BAC tests resulted from an illegal search. However, Trooper Noyes had more than
enough evidence to establish reasonable suspicion of a DUI to conduct the field sobriety and
BAC tests before he discovered the bottles in Lian’s vehicle. Further, Trooper Noyes testified
that he was going to conduct the testing regardless of the car search. The tests results were not a
product of Trooper Noyes finding the bottles in Lian’s vehicle. Thus, the district court erred in
suppressing the field sobriety and BAC test results as fruits of the poisonous tree.
                                                IV.
                                         CONCLUSION
       The district court erred by concluding that Trooper Noyes committed a constitutional
violation and suppressing the test results as fruits of the poisonous tree. Therefore, we reverse
the district court’s order granting Lian’s motion to suppress.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




5
       It is apparent from the following statement that the district court was mistaken as to
Trooper Noyes’ need to acquire more evidence: “The timing and manner of the search and
subsequent field sobriety tests supports a finding that that search was conducted to secure
additional evidence to support conducting such field sobriety tests.”
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