               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40914

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 653
                                                 )
       Plaintiff-Respondent,                     )     Filed: August 8, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
KIRK LEE PENDERGRASS,                            )     THIS IS AN UNPUBLISHED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, Ada
       County. Hon. Michael R. McLaughlin, District Judge; Hon. John T. Hawley, Jr.,
       Magistrate.

       Decision of the district court, on intermediate appeal, affirming denial of motion
       to suppress, affirmed.

       Alan Trimming, Ada County Public Defender; Adam C. Kimball, Ada County
       Deputy Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Kirk Lee Pendergrass appeals from the memorandum decision and order of the district
court affirming the magistrate’s denial of Pendergrass’ motion to suppress. For the reasons that
follow, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       An officer with the Garden City Police Department was on patrol when he saw a vehicle
and proceeded to do a search of the vehicle’s license plate number using his in-car computer.
The system returned information on the registration, including a driver’s license number
associated with the registration. The officer conducted a search of the driver’s license number
and learned that the driver’s license was issued to Pendergrass and also learned that Pendergrass’
driving privileges were suspended. Additionally, the officer was able to obtain a picture of


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Pendergrass from a prior booking photograph. Although the officer lost sight of the vehicle, a
few minutes later the officer was proceeding down a residential street when he saw the same
vehicle being driven towards him. The officer testified that he had the booking photograph still
on display on his computer and was able to identify the driver of the vehicle as Pendergrass. The
officer then executed a u-turn and initiated a traffic stop of Pendergrass. Pendergrass was cited
for driving without privileges and failure to provide proof of insurance. 1
       Pendergrass was subsequently appointed counsel who moved to suppress the evidence on
the grounds that the officer who stopped Pendergrass lacked reasonable suspicion. A magistrate
conducted a hearing on the motion to suppress at which the officer and Pendergrass testified.
After the hearing, the magistrate issued a memorandum decision and order denying the motion to
suppress, and Pendergrass entered a conditional guilty plea, reserving the right to appeal.
Pendergrass appealed to the district court, and the district court held a hearing in its appellate
capacity. The district court affirmed the magistrate’s denial of Pendergrass’ motion to suppress,
and Pendergrass appeals.
                                                 II.
                                   STANDARD OF REVIEW
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, we do not review the decision of the
magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are procedurally bound
to affirm or reverse the decision of the district court. State v. Korn, 148 Idaho 413, 415 n.1, 224
P.3d 480, 482 n.1 (2009).




1
      The citation for failure to provide proof of insurance is not at issue in this appeal, for
Pendergrass paid the fine.

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         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
         On appeal, Pendergrass argues that the traffic stop conducted by the officer violated his
Fourth Amendment rights under the United States Constitution because the officer did not have
reasonable suspicion based on articulable facts that Pendergrass was the driver of the vehicle
immediately prior to the stop. 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); 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).
         Much of Pendergrass’ argument on appeal rests on State v. Cerino, 141 Idaho 736, 117
P.3d 876 (Ct. App. 2005).       In that case, we analyzed whether, under the totality of the
circumstances, a detective possessed reasonable suspicion at the time he initiated a traffic stop.
All that was known to the detective at the time was that the vehicle was registered to a male and


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a female, that the male registrant did not possess an Idaho driver’s license, and that a male was
presently driving the vehicle.    Although the State argued that this information constituted
reasonable suspicion, we concluded otherwise. Id. at 738, 117 P.3d at 878. We noted that the
detective knew only that the registrant did not have an Idaho driver’s license, but did not know
whether the registrant had a license from another jurisdiction. Id. In addition, the detective had
never seen the registrant and had no physical description of him; thus, nothing but the driver’s
gender “matched” the officer’s information about the registration. Id. Therefore, we held “that
the mere observation of a vehicle being driven by someone of the same gender as the unlicensed
owner is insufficient to give rise to a reasonable suspicion of unlawful activity.” Id. Cerino, on
its facts, is inapplicable to the present case. Unlike the detective in Cerino, the officer in this
case had more than a mere observation of a vehicle being driven by someone of the same gender
as the unlicensed owner.
       More applicable in this instance is State v. Law, 115 Idaho 769, 769 P.2d 1141 (Ct. App.
1989), where an officer observed an automobile arrive at a house, and the officer learned that the
registered owner of the automobile, Roger Law, had a warrant for his arrest and that his driving
privileges were suspended. The officer also received a physical description of Law from which
the officer determined that the driver of the automobile met the physical description of Law, as
the driver entered the house and returned to the vehicle several times.         The driver of the
automobile then drove away from the house. A second officer heard the other officer’s report
that the automobile was leaving the house, that the vehicle was registered to Law, that the driver
fit the description of Law, that there was a warrant for Law’s arrest, and that Law’s driving
privileges were suspended. The second officer then proceeded to initiate a traffic stop of Law’s
automobile. We concluded that, based on the totality of the circumstances, the second officer
who stopped Law had reasonable suspicion to stop the automobile for the purpose of determining
whether it was being driven by the registered owner, Law, an unlicensed driver wanted on a
bench warrant. Id. at 771, 769 P.2d at 1143.
       Here, before initiating the traffic stop, the officer was able to determine that Pendergrass’
driving privileges were suspended and was also able to locate a booking photograph of
Pendergrass. The officer’s testimony, as credited by the magistrate, was that he was able to
identify Pendergrass as the driver of the vehicle coming towards him before the officer turned his
vehicle around and initiated the traffic stop. As compared to Law, where the officer knew that


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the driver matched the physical description, the uncontroverted testimony here was that the
officer identified Pendergrass as the driver of the vehicle.        Accordingly, the officer had
reasonable suspicion based on articulable facts that Pendergrass was driving a vehicle while his
driving privileges were suspended, in violation of Idaho Code § 18-8001(1).
       Pendergrass argues that even if the magistrate determined that the officer identified
Pendergrass as the driver of the vehicle, the finding is clearly erroneous. At a hearing before the
magistrate, the officer was cross-examined by Pendergrass’ attorney and the officer explained
how he identified Pendergrass:
       [Defense counsel]:             Okay. At what time--do--do you recall, did you
                                      identify Mr. Pendergrass as the driver at the time
                                      that you--that you pulled him over?
       [Officer]:                     Yes. I still had the--the booking photo up on the
                                      computer when he passed me, which is shown in the
                                      video. So, I was able to see him, and the photo, and
                                      confirm it was him when I turned around to stop
                                      him.
       [Defense counsel]:             Okay. So, your testimony today would be that you
                                      identified him at the time that your vehicle passed
                                      his vehicle on the video?
       [Officer]:                     Yes.
       [Defense counsel]:             Okay. Prior to that, you wouldn’t have identified
                                      him as the driver of (unintelligible)?
       [Officer]:                     That I--I can’t say exactly how it happened. I can
                                      give you most likely, but that’s all.

Also included in the record on appeal is a video from the camera mounted in the officer’s
vehicle. The video depicts the front of the officer’s car proceeding down a residential street
under a lighted--but near dusk--partly-cloudy sky. As the officer is driving down the street, a
pickup truck is depicted driving on the opposite side of the street, approaching the officer. After
the truck leaves the camera’s view, the officer’s vehicle pulls up onto the sidewalk and executes
a u-turn and the officer’s vehicle proceeds to pull up behind the truck.
       In support of his argument that the factual finding is clearly erroneous, Pendergrass
contends that the video demonstrates that “it is highly unlikely” that the officer identified
Pendergrass as the driver. Further, Pendergrass recounts that at the suppression hearing he
testified that he was wearing a beanie, sunglasses, and a bulky coat. We note that the power to
assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual
inferences is vested in the trial court. Valdez-Molina, 127 Idaho at 106, 897 P.2d at 997;

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Schevers, 132 Idaho at 789, 979 P.2d at 662. Considering the totality of the evidence, we are
persuaded that the magistrate’s finding that the officer identified Pendergrass as the driver
immediately before initiating the traffic stop is supported by substantial evidence. 2 For these
reasons, the district court’s memorandum decision and order affirming the magistrate’s denial of
Pendergrass’ motion to suppress is affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




2
        Pendergrass’ defense counsel did not recall the officer to challenge the officer’s
identification of Pendergrass, based upon Pendergrass’ assertion that he was wearing a beanie,
sunglasses, and a bulky coat.

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