Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge. Judgment of conviction for unlawful possession of a firearm, affirmed.
The opinion of the court was delivered by: Gratton, Chief Judge
Steven Clay Anderson appeals from his judgment of conviction for unlawful possession of a firearm. Specifically, Anderson argues that the district court erred in denying his motion to suppress evidence of the weapon found in his vehicle. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cassia County Deputy Antonio Bernad was patrolling in Burley when he stopped a van driven by Anderson. Incident to the stop, Officer Bernad called for a drug dog. While Officer Bernad was processing information and proceeding to write citations, the dog alerted on the passenger side door of the van. Officer Bernad directed that the dog be placed in the van. The dog did not alert while inside the van. Officer Bernad and another officer searched the van and located a firearm, but no drugs. Anderson, who had a prior felony conviction, was charged with possession of a firearm by a felon, Idaho Code § 18-3316, and failure to provide proof of insurance, I.C. § 49-1232. He filed a motion to suppress evidence of the firearm, asserting that the search of the van violated his constitutional rights. After taking evidence and argument at a suppression hearing and reviewing the video and audio evidence submitted at the hearing, the district court entered a memorandum decision denying Anderson's motion to suppress. Thereafter, Anderson entered a conditional guilty plea to possession of a weapon by a felon, reserving his right to challenge the denial of his suppression motion. This appeal followed.
When a decision on a suppression motion is challenged, we accept the trial court's findings of fact if they are supported by substantial evidence, but we freely review the application of constitutional principles to the facts as found. State v. McCall, 135 Idaho 885, 886, 26 P.3d 1222, 1223 (2001); 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 and Article I, § 17 of the Idaho Constitution prohibit unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable unless they fall within one of a few narrowly drawn exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v. Aschinger, 149 Idaho 53, 56, 232 P.3d 831, 834 (Ct. App. 2009). One such exception, the "automobile exception," allows officers to search an automobile if they have probable cause to believe that it contains contraband or evidence of a crime. United States v. Ross, 456 U.S. 798, 807-08 (1982); State v. Wigginton, 142 Idaho 180, 182, 125 P.3d 536, 538 (Ct. App. 2005). Probable cause is established if the facts available to the officer at the time of the search would warrant a person of reasonable caution in the belief that the area or items to be searched contain contraband or evidence of a crime. Ross, 456 U.S. at 808 n.10; State v. Yeoumans, 144 Idaho 871, 873, 172 P.3d 1146, 1148 (Ct. App. 2007). Probable cause is a flexible, common-sense standard. Yeoumans, 144 Idaho at 873, 172 P.3d at 1148. "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). See also Texas v. Brown, 460 U.S. 730, 742 (1983); State v. Gibson, 141 Idaho 277, 281, 108 P.3d 424, 428 (Ct. App. 2005). In determining probable cause, the court must consider the totality of the circumstances known to the officer at the time of the search. Gates, 462 U.S. at 230-33. "Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." Brinegar, 338 U.S. at 176.
Anderson raised two arguments in the district court. First, he asserted that the stop was illegally extended by the officers. He does not make this claim on appeal. Second, Anderson claimed that "when the drug dog failed to produce any contraband within the vehicle the officers lost their probable cause to be in the vehicle and therefore should not have reentered it." In his argument regarding this second claim, Anderson stated: "As to the second issue once the drug dog hit on the van it then gave the officer's probable cause to allow the dog to search the vehicle." Therefore, contrary to certain arguments advanced on appeal, Anderson did not challenge below the officers' probable cause, based upon the drug dog's positive alert, to search the interior of the van, and we will not further address any such claim.*fn1 Additionally, Anderson never claimed below that the drug dog was unqualified, by training and experience, or unreliable. Anderson did not argue to the district court that foundation regarding the dog's training and reliability was insufficient to allow admission of the evidence. See State v. Howard, 135 Idaho 727, 24 P.3d 44 (2001) (challenging sufficiency of foundation to admit drug dog evidence). Although the dog handler testified that the dog had two prior false positive alerts, which were explained by the circumstances, Anderson did not argue to the district court, as he does on appeal, that the dog had an inability to distinguish between residual odors from present drugs or how that fact, if established, affected the probable cause analysis. See State v. Braendle, 134 Idaho 173, 997 P.2d 634 (Ct. App. 2000) (challenging sufficiency of evidence to demonstrate probable cause). In Yeoumans, 144 Idaho at 875, 172 P.3d at 1150, this Court held that an otherwise reliable, certified drug dog's alert is sufficient to demonstrate probable cause even if there exists a possibility that the dog has alerted on residual odors. While the Yeoumans Court further indicated that a district court may take the fact that a drug dog sometimes responds to residual odors into account to assess the dog's reliability, id., Anderson, at no time raised any question as to the dog's reliability. In fact, Anderson argued in the district court that since the alert of the "trained dog" on the outside of the van was sufficient to establish probable cause to search the interior, that same dog's failure to alert when inside the van dissipated or eliminated the probable cause. Thus, Anderson argued the "trained" dog's failure to alert inside the van was, in fact, reliable. We will not further address issues raised on appeal regarding the training and reliability of the drug dog.
We return then to the sole issue on appeal, which is whether, under the circumstances, the drug dog's failure to alert inside the van precluded the officers from searching themselves. While the drug dog's alert on the passenger door alone provided the officers with probable cause to search the van, we also consider the other factors existing at the time. Prior to making the stop, Officer Bernad observed Anderson's vehicle straddling the center line of southbound lanes of traffic, causing other vehicles to drive out of their lane to go around Anderson's vehicle. Anderson nearly side-swiped a vehicle on the right, causing the other vehicle to swerve to avoid collision. After Officer Bernad activated his emergency lights, the van did not immediately stop. After activating his siren, the van traveled another block before stopping. Upon making contact with Anderson, Officer Bernad was told by Anderson that the van was not his, but was his brother's, and that the license plates on the van were not issued for the van and that he had put them on. After exiting the van, Anderson told Officer Bernad that his erratic driving was because he was paying attention to a metal bar of platinum, which Officer Bernad later observed between the seats of the van. Anderson advised Officer Bernad that he had no insurance. Anderson told Officer Bernad that he had charges pending for controlled substance sales and delivery.
Officer Bernad told Anderson that he would be issuing citations. Officer Bernad directed Anderson to get back into the driver's seat of the van and keep his hands on the wheel where he could see them. Officer Bernad began processing a driver and vehicle check. While doing so, he observed that Anderson was doing quite a bit of moving around in the vehicle and it did not appear that he was abiding by the direction to keep his hands on the wheel. Officer Bernad indicated that he was concerned by these movements for his own safety, not knowing what Anderson was doing, and that these fast movements, coupled with Anderson's pending criminal charges, made him concerned that Anderson might be under the influence of stimulants. At that point, contrary to instructions, Anderson began to exit the van and Officer Bernad ordered him to the back of the van where he was searched for weapons, which produced two pocket knives, and was thereafter watched by another officer on the scene. While Officer Bernad completed the records check and issuance of citations, the drug dog arrived and alerted on the passenger door. Officer Bernad directed the handler to place the dog in the van, which was done, but no further alerts were observed while the dog was inside. The dog was then placed in the patrol car and the officers searched the van, locating the weapon, but no drugs.
The district court correctly held that the officers had probable cause to conduct a search of the interior of the vehicle. The district court further pointed out that Anderson had failed to cite any authority for the proposition of probable cause dissipation. The State also argues that the officers were entitled to conduct the search in a manner that employed manual search as well as use of the drug dog and that Anderson failed to cite to any authority that failure of one search method to locate contraband foreclosed the other.
The question of dissipation of probable cause appears to be one of first impression in Idaho. Thus, the Idaho appellate courts have yet to define or expound on the contours of this proposition. We have located cases discussing the general nature of dissipation of probable cause. In United ...