               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41580

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 346
                                               )
       Plaintiff-Respondent,                   )    Filed: February 11, 2015
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
MARIO FELIPE COSTA,                            )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. Robert J. Elgee, District Judge.

       Judgment of conviction for felony driving under the influence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.



LANSING, Judge
       Mario Felipe Costa appeals from his conviction for felony driving under the influence,
contending that the district court erred by denying his motion to suppress evidence. We affirm.
                                               I.
                                       BACKGROUND
       In September of 2012, a Jerome police officer received a report of shots fired from a
moving vehicle. The officer observed a pickup truck matching the description of the suspect
vehicle and pulled the vehicle over. Costa was driving. Thereafter, the officer and a Jerome
County deputy also responding to the scene observed signs indicating that Costa was intoxicated.
The deputy had Costa perform field sobriety tests, which Costa failed. Costa was arrested for




                                               1
driving under the influence. At the jail, Costa submitted to a breath test returning results of .179
and .162
       Costa was charged with felony driving under the influence, Idaho Code §§ 18-8004, 18-
8005(6), based upon two prior convictions within the previous ten years. Costa moved to
suppress, alleging that the evidence against him was gained from an illegal stop, detention, and
arrest. The district court denied the motion. Thereafter, Costa entered a conditional guilty plea,
reserving the right to appeal the denial of his suppression motion.
                                                II.
                                           ANALYSIS
       On appeal, Costa pursues only one part of his suppression motion, contending that the
district court erred in concluding that his arrest for DUI was supported by probable cause. Costa
does not challenge the district court’s factual findings but instead argues that those facts do not
amount to probable cause.       Thus, Costa asserts, his breath test results should have been
suppressed. 1
       When a decision on a suppression motion 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 Constitution2 protects the right of the people
to be free from unreasonable searches and seizures, “and no Warrants shall issue, but upon



1
       The exclusionary rule calls for suppression of evidence that is gained through
unconstitutional governmental activity. Segura v. United States, 468 U.S. 796, 815 (1984); State
v. Wigginton, 142 Idaho 180, 184, 125 P.3d 536, 540 (Ct. App. 2005). This prohibition against
the use of derivative evidence extends to the indirect as well as the direct fruit of the
government’s misconduct. Segura, 468 U.S. at 804; Wong Sun v. United States, 371 U.S. 471,
484 (1963).
2
        Although Costa also contends that Article I, Section 17 of the Idaho Constitution was
violated, he provides no argument that our state constitutional provision should be applied
differently than the Fourth Amendment to the United States Constitution in this case. Therefore,
                                                 2
probable cause . . . .” U.S. CONST. amend. IV. When seizure occurs without a warrant, the
government bears the burden of proving facts necessary to establish an exception to the warrant
requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971); State v. Dycus, 154 Idaho
456, 459, 299 P.3d 263, 266 (Ct. App. 2013).          Evidence obtained in violation of these
constitutional protections must be suppressed in a criminal prosecution of the person whose
rights were violated. Dycus, 154 Idaho at 459, 299 P.3d at 266. A warrantless arrest of an
individual in a public place for a felony is consistent with the Fourth Amendment if the arrest is
supported by probable cause. Maryland v. Pringle, 540 U.S. 366, 370 (2003). We freely review
the trial court’s legal conclusion that the facts established probable cause to support an arrest.
See State v. Bainbridge, 117 Idaho 245, 247, 787 P.2d 231, 233 (1990).
       Probable cause is “the possession of information that would lead a person of ordinary
care and prudence to believe or entertain an honest and strong presumption that such person is
guilty.” State v. Julian, 129 Idaho 133, 136, 922 P.2d 1059, 1062 (1996). In analyzing whether
probable cause existed, this Court must determine whether the facts available to the officers at
the moment of the seizure warranted a person of reasonable caution to believe that the action
taken was appropriate. Id.; State v. Hobson, 95 Idaho 920, 925, 523 P.2d 523, 528 (1974). The
facts making up a probable cause determination are viewed from an objective standpoint. Julian,
129 Idaho at 136-37, 922 P.2d at 1062-63. In passing on the question of probable cause, the
expertise and the experience of the officer must be taken into account. State v. Ramirez, 121
Idaho 319, 323, 824 P.2d 894, 898 (Ct. App. 1991). In evaluating whether the State has met this
practical and common-sense standard, the totality of the circumstances is considered. Pringle,
540 U.S. at 371.
       In denying the motion to suppress, the district court found credible the testimony of the
law enforcement officers who testified to the following observations. There was a keg of beer in
the back of the vehicle and Costa’s passenger had an open container of beer. When he was
outside of the vehicle, Costa smelled of alcohol. Costa had bloodshot eyes, slurred speech, and
slow motor skills. Costa failed a number of field sobriety tests including the horizontal gaze



the Court will rely on judicial interpretation of the Fourth Amendment in its analysis of Costa’s
claims. See State v. Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).



                                                3
nystagmus (HGN) test (Costa could not follow the instructions), the walk-and-turn test (Costa
missed several steps in heel-to-toe), and the one-leg-stand test (Costa kept putting his raised foot
down and stopped early).
       The district court did not err in holding that these observations gave the officers probable
cause to arrest Costa for DUI. Because the officers had probable cause to arrest, the district
court correctly denied Costa’s motion to suppress evidence. Accordingly, the district court’s
order and the judgment of conviction are affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




                                                 4
