                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38446

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 521
                                                  )
       Plaintiff-Respondent,                      )      Filed: June 20, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
MARK A. WHITMAN,                                  )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Richard D. Greenwood, District Judge.

       Order denying motion to suppress, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Mark Whitman appeals from the district court’s order denying his motion to suppress.
We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Idaho State Trooper Bailey observed a GMC Suburban pulling into a gas station. As
Trooper Bailey was leaving the gas station, he drove past the vehicle and noticed it was pulling a
trailer without a license plate. Later, the same vehicle passed Trooper Bailey and he initiated a
traffic stop because the trailer lacked a license plate and functioning tail lights. Once the vehicle
was stopped, the trooper identified Whitman as the driver. Trooper Bailey believed that he had
seen a different man driving the vehicle in the gas station parking lot, so he asked Whitman if he
was alone. Whitman paused, before stating that he was alone in the vehicle. Trooper Bailey




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then observed a bullet in the middle console, and asked if there were any firearms inside the
vehicle, to which Whitman hesitated and then replied there were no firearms.
        Suspicious of the responses given by Whitman, Trooper Bailey scanned the interior of the
vehicle, at which point he noticed “some brown hair sticking out of a blanket in the rear
compartment of the [S]uburban.” Trooper Bailey commanded the individual to show his hands
and present himself. The man, identified as Michael Maddox, was asked to sit in the front
passenger seat of the Suburban while Trooper Bailey initiated driver’s checks on both names.
The checks revealed that Maddox had multiple outstanding warrants for his arrest. Maddox was
then taken into custody and Whitman was detained in the backseat of a police car.
        Trooper Bailey, assisted by a deputy, then searched the vehicle. During the search, a
brown briefcase was discovered containing: (1) a loaded handgun, which was later determined
to be stolen; (2) a plastic bag with a white crystal residue, later determined to be
methamphetamine; and (3) a scale. Under the vehicle’s rear seats, two other handguns were
discovered and in the rear compartment a glass pipe in a jacket.
        As a result of the traffic stop and the items found within the vehicle, Whitman was
charged with aiding and abetting grand theft by receiving or possessing stolen property,
possession of a controlled substance, resisting or obstructing officers, and possession of
paraphernalia. Whitman moved to suppress the evidence, in which he asserted that the recently-
issued case, Arizona v. Gant, 556 U.S. 332 (2009), prohibited the type of search conducted by
the police in this case. 1
        The State opposed Whitman’s motion to suppress, arguing, inter alia, that the search of
the automobile was “justified as a protective Terry frisk of the vehicle” and that the evidence
would have inevitably been discovered.        The district court denied the suppression motion.
Whitman conditionally pled guilty to possession of a controlled substance and resisting or
obstructing officers, reserving the right to challenge the district court’s denial of his suppression
motion. The district court imposed a seven-year term, with three years determinate on the
controlled substance charge, and a sentence of one year on the resisting or obstructing officers
charge. The district court suspended execution of both sentences, and placed Whitman on
probation for a period of four years. Whitman timely appealed.

1
       Neither the parties nor the district court had the guidance of the United States Supreme
Court decision in Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419 (2011).

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                                                II.
                                           ANALYSIS
       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).
       The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. 2 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. See also Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (officer
safety exception applies to a search of an automobile’s passenger compartment when an officer
has reasonable suspicion that an individual is dangerous and might access the vehicle to gain
immediate control of weapons); State v. Veneroso, 138 Idaho 925, 929, 71 P.3d 1072, 1076 (Ct.
App. 2003) (automobile exception applies to a search of an automobile where officers have
probable cause to believe that the automobile contains contraband or evidence of a crime); State
v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct. App. 1993) (search incident to a valid
arrest is an exception to the warrant requirement).
       Because we conclude that it is dispositive, we first address the State’s argument that the
search of Whitman’s vehicle was valid under the automobile exception. Under the automobile
exception, 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. State

2
        Whitman did not argue below that his rights under Article I, § 17, of the Idaho
Constitution were violated, nor did he argue that the Idaho Constitution provides greater
protection than the Fourth Amendment. Therefore, we will analyze his claim solely under the
Fourth Amendment.


                                                 3
v. Gallegos, 120 Idaho 894, 898, 821 P.2d 949, 953 (1991). “Probable cause is a flexible,
common-sense standard.” State v. Newman, 149 Idaho 596, 599, 237 P.3d 1222, 1225 (Ct. App.
2010). 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. If probable cause exists to believe a vehicle
contains evidence of criminal activity, the search of any area of the vehicle in which the evidence
might be found is authorized. United States. v. Ross, 456 U.S. 798, 820-21 (1982). The scope of
such a search includes evidence relevant to offenses other than the offense of arrest. Gant, 556
U.S. at 347. If probable cause justifies the search of a lawfully-stopped vehicle, it justifies the
search of every part of the vehicle and its contents that may conceal the object of the search.
Ross, 456 U.S. at 825. The scope of a warrantless search of an automobile is not defined by the
nature of the container in which the contraband is secreted. Id. at 824. Rather, it is defined by
the object of the search and the places in which there is probable cause to believe that it may be
found. Id.
       Whitman argues that the district court erred in holding that the police had probable cause
to believe that the specific crime of possessing a concealed weapon had been committed and that
evidence of that crime could be found in the automobile. Whitman’s argument is based on the
erroneous belief that the probable cause must be connected to the specific crime for which he
was arrested. However, in Gant, the United States Supreme Court reiterated that the automobile
exception “allows searches for evidence relevant to offenses other than the offense of arrest, and
the scope of the search authorized is broader.” Gant, 556 U.S. at 347.
       Whitman also asserts that the presence of a bullet does not establish probable cause.
Whitman cites People v. Colyar, 941 N.E.2d 479 (Ill. App. Ct. 2010), rev. allowed, 949 N.E.2d
1100, for the proposition that an officer’s observation of a bullet in plain view in a vehicle’s
center console does not provide the officer with probable cause. In Colyar, two police officers
approached a vehicle to tell the driver his vehicle was blocking the hotel’s entrance. Id. at 481.
As the owner of the vehicle was explaining that he was just temporarily parked to pick up
passengers, one of the officers looked in the vehicle’s window and noticed a bullet in the center


                                                4
console. Id. The men were asked to exit the vehicle and were handcuffed. Id. While the men
were in custody, the police searched the vehicle and found a handgun. Id. at 482. After being
charged, the defendant moved to suppress the handgun and the bullets. The circuit court granted
the defendant’s motion to suppress the handgun and bullets because the seizure of all the
evidence flowed from an illegal search and the custodial search was based upon an unlawful
arrest. Id. The Appellate Court of Illinois affirmed the lower court’s decision on the reasoning
that the “police action is not supported by probable cause that a crime had occurred based on a
plain-view sighting of a bullet because a bullet is not contraband per se.” Id. at 480.
       The facts of the present case are distinguishable from those present in Colyar. The
district court found the following facts to establish that Trooper Bailey had probable cause.
First, Trooper Bailey “noticed the driver was different from the individual he had observed
earlier, and that the prior driver/occupant was now missing.” Whitman falsely said that he was
the only occupant in the vehicle. Trooper Bailey’s suspicions were further aroused when he
observed a bullet on the middle console. When asked if there were any firearms in the vehicle,
Whitman denied having any. The trooper noticed that Whitman “hesitated and broke eye-
contact” when answering his questions. As Whitman searched for his license and registration,
the trooper noticed the rear window had been rolled up since the time he first noticed the
automobile. Whitman also provided an expired proof of insurance. Trooper Bailey then “shined
his flashlight into the rear of the vehicle [and] noticed some brown hair sticking out from one of
the blankets.”   As Trooper Bailey commanded the concealed passenger to move into the front
passenger seat, Whitman continued lying by stating “Mike, I didn’t know you were back there.”
Trooper Bailey went back to his police car to run a driver’s check on their names. During that
time, the passenger continually asked to go to the bathroom, the trooper felt that these requests
were attempts to flee the scene. Trooper Bailey then “learned that the passenger had multiple
warrants for probation violation and contempt, and that there was caution warning and a state-
wide order for his extradition.” In totality, the district court determined that “in this case unlike
Gant, the officers after the legal stop occurred had probable cause to believe that additional
crimes were taking place, besides mere traffic infractions based upon their own observations, the
actions of the individuals in the vehicle and the radio information about one of the occupants.”
        Whitman’s contention that, by itself, the bullet does not provide probable cause to search
his vehicle ignores the totality of the facts that were before Trooper Bailey. The district court’s


                                                 5
findings are supported by substantial and competent evidence in the record. These facts would
lead a reasonable person to believe that Whitman’s vehicle contained contraband or evidence of
a crime.   The automobile exception applies and the district court did not err in denying
Whitman’s motion to suppress. 3
                                              III.
                                        CONCLUSION
       Because there was probable cause to search Whitman’s vehicle under the automobile
exception, we conclude that the district court did not err in denying Whitman’s motion to
suppress. Accordingly, the district court’s denial of Whitman’s motion to suppress is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




3
        The district court also denied the motion to suppress on the basis of the doctrine of
inevitable discovery. We need not address the doctrine of inevitable discovery or other issues
raised by the parties.

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