               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 44262

STATE OF IDAHO,                                 )    2017 Unpublished Opinion No. 308
                                                )
       Plaintiff-Respondent,                    )    Filed: January 10, 2017
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
LUCAS DARNELL FRANCKE,                          )    THIS IS AN UNPUBLISHED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. Richard D. Greenwood, District Judge.

       Judgment of conviction for possession of a controlled substance and misdemeanor
       possession of drug paraphernalia, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Judge
       Lucas Darnell Francke appeals from his judgment of conviction for possession of a
controlled substance and misdemeanor possession of drug paraphernalia. Specifically, Francke
asserts that the district court erred in denying Francke’s motion to suppress. For the reasons set
forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       An officer was following a white pickup and was unable to read the license plate number
because a trailer hitch obstructed the officer’s view of the license plate. The officer stopped the
pickup, in which Francke was a passenger, for a violation of I.C. § 49-428(2), which requires
that every license plate be clearly visible. The officer detected the odor of marijuana coming

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from the pickup and called a K-9 unit. A subsequent search revealed methamphetamine, two
pipes, a digital scale, a mirror, razor blades and cash, all in a backpack near Francke. Francke
admitted to being in possession of the backpack. The State charged Francke with one count of
possession of a controlled substance, I.C. § 37-2732(c), and one misdemeanor count of
possession of drug paraphernalia, I.C. § 37-2734A. Francke filed a motion to suppress the drugs
and paraphernalia. The district court denied that motion, and Francke pled guilty. Francke
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).
                                                III.
                                           ANALYSIS
       In his motion to suppress, Francke argued that the officer lacked reasonable suspicion to
initiate the traffic stop. Specifically, Francke asserted that the statute, I.C. § 49-428(2), was
unconstitutionally vague as applied to him and allowed the officer to arbitrarily and
discriminatorily enforce the statute against Francke. Francke further asserted that the statute
failed to define with sufficient clarity what conduct was prohibited and could not be the basis of
the officer’s reasonable suspicion. As an example of the statute’s vagueness, Francke asserts that
the statute fails to specify that the license plate must be visible to vehicles traveling directly
behind the license plate. Francke contends that, because the officer’s reasonable suspicion was
based on an unconstitutional statute, the stop was unlawful.




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A.     Constitutionality of the Statute
       Where the constitutionality of a statute is challenged, we review the lower court’s
decision de novo. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998); State v. Martin,
148 Idaho 31, 34, 218 P.3d 10, 13 (Ct. App. 2009).            The party attacking a statute on
constitutional grounds bears the burden of proof and must overcome a strong presumption of
validity. State v. Freitas, 157 Idaho 257, 261, 335 P.3d 597, 601 (Ct. App. 2014); State v. Cook,
146 Idaho 261, 262, 192 P.3d 1085, 1086 (Ct. App. 2008). Appellate courts are obligated to seek
an interpretation of a statute that upholds its constitutionality. Freitas, 157 Idaho at 261, 335
P.3d at 601; Martin, 148 Idaho at 34, 218 P.3d at 13.
       Due process requires that all be informed as to what the State commands or forbids and
that persons of ordinary intelligence not be forced to guess at the meaning of the law. Cobb, 132
Idaho at 197, 969 P.2d at 246. No one may be required at the peril of loss of liberty to speculate
as to the meaning of penal statutes. Freitas, 157 Idaho at 261, 335 P.3d at 601. A void for
vagueness challenge is more favorably acknowledged and a more stringent vagueness test will be
applied where a statute imposes a criminal penalty. Cobb, 132 Idaho at 198, 969 P.2d at 247. As
a result, criminal statutes must plainly and unmistakably provide fair notice of what is prohibited
and what is allowed in language persons of ordinary intelligence will understand. State v.
Kavajecz, 139 Idaho 482, 486, 80 P.3d 1083, 1087 (2003).
       Additionally, a statute is void for vagueness if it invites arbitrary and discriminatory
enforcement. Freitas, 157 Idaho at 261, 335 P.3d at 601. A statute avoids problems with
arbitrary and discriminatory enforcement by identifying a core of circumstances to which the
statute or ordinance unquestionably could be constitutionally applied. Id. A statute should not
be held void for uncertainty if it can be given any practical interpretation. Id. at 261-62, 335
P.3d at 601-02. A statute may be challenged as unconstitutionally vague on its face or as applied
to a defendant’s conduct. Id.; Martin, 148 Idaho at 35, 218 P.3d at 14. To succeed on an
as-applied vagueness challenge, a defendant must show that the statute failed to provide fair
notice that the defendant’s conduct was prohibited or failed to provide sufficient guidelines such
that police had unbridled discretion in determining whether to arrest the defendant. State v.
Pentico, 151 Idaho 906, 915, 265 P.3d 519, 528 (Ct. App. 2011).




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         In this case, the statute at issue requires every license plate be “clearly visible” and “free
from foreign materials.” I.C. § 49-428(2). Francke argues that the foreign materials refers to
materials directly on the license plate and not to detached materials that obstruct a view of the
license plate. It appears that Francke asserts that the application of the “free from foreign
materials” requirement, as applied to him, is unconstitutionally vague because the officer
interpreted that requirement to prohibit the trailer hitch that obstructed the license plate.
However, the statute’s mandate to keep license plates “free from foreign materials” is not at
issue. The statute also mandates that the license plate be clearly visible. The term “clearly
visible” has a common meaning. Because the unambiguous requirement that every license plate
be clearly visible is that license plates be free from obstruction, the statute clearly sets forth the
conduct prohibited. Thus, I.C. § 49-428(2) is not unconstitutionally vague as applied to Francke.
B.       Validity of the Traffic 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); 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).
         In this case, Francke’s argument that the stop was unlawful was based on his assertion
that I.C. § 49-428(2) was unconstitutional as applied to him. However, we have determined that
the statute is not unconstitutional as applied to Francke. Francke concedes that the trailer hitch
obstructed the officer’s view of the license plate. Thus, the officer had reasonable suspicion that


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there was a violation of I.C. § 49-428(2). Accordingly, the stop was lawful and the district court
did not err in denying Francke’s motion to suppress.
                                               IV.
                                        CONCLUSION
       Idaho Code Section 49-428(2) unambiguously requires that every license plate be clearly
visible and is not unconstitutional as applied to Francke. Because the officer’s view of the
license plate was obstructed by the trailer hitch, he had a reasonable suspicion that there was a
violation of I.C. § 49-428(2). Thus, the stop was lawful and the district court correctly denied
Francke’s motion to suppress. Accordingly, Francke’s judgment of conviction for possession of
a controlled substance and misdemeanor possession of drug paraphernalia is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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