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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36337

TERRY HOSKINS,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2010 Opinion No. 45

Filed: July 2, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bingham County. Hon. Darren B. Simpson, District Judge. 

Order summarily dismissing petition for post-conviction relief, affirmed.

Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Chief Judge

Terry Hoskins was convicted of possession of methamphetamine that police found in his 

vehicle. He subsequently filed a petition for post-conviction relief in which he alleged his 

defense attorney had incompetently overlooked a basis for suppression of the methamphetamine. 

The district court dismissed Hoskins‟ petition, and he appeals. We affirm.

I.

FACTS AND PROCEDURE

In March 2007, two police officers went to Hoskins‟ home intending to take him into 

custody on two misdemeanor arrest warrants. When they arrived, Hoskins was sitting in his 

vehicle, working on a broken turn signal. The officers ordered Hoskins out of the vehicle, 

arrested and handcuffed him, and took him to the patrol car. As Hoskins was being handcuffed, 

an officer began a search of Hoskins‟ vehicle pursuant to the arrest and discovered 

methamphetamine. Hoskins pleaded guilty to possession of methamphetamine and did not 
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appeal. A little less than one year later, Hoskins filed a petition for post-conviction relief. 

Among other things, he asserted that his attorney provided ineffective assistance by omitting to 

file a motion to suppress the evidence found in the vehicle.

After issuing a notice of intent to dismiss, the district court summarily dismissed this 

claim, reasoning that defense counsel‟s performance was not deficient because, had a 

suppression motion been filed, it would not have been successful inasmuch as the search was a 

lawful search incident to Hoskins‟ arrest under then-existing Idaho jurisprudence. Hoskins 

appeals, asserting that a decision of the United States Supreme Court, issued after Hoskins‟ 

conviction, establishes that a suppression motion would have had merit and that his defense 

attorney was therefore deficient in failing to file such a motion. 

II.

STANDARDS OF REVIEW

In order to prevail on an ineffective assistance of counsel claim, a post-conviction

applicant must demonstrate both that his attorney‟s performance was deficient, and that he was 

prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984); Aragon v. State, 114 

Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 

224 (Ct. App. 1995); Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct. App. 1989). 

To show deficient performance, a defendant must overcome the strong presumption that 

counsel‟s performance was adequate by demonstrating “that counsel‟s representation did not 

meet objective standards of competence.” Roman v. State, 125 Idaho 644, 648-49, 873 P.2d 898, 

902-03 (Ct. App. 1994). If a defendant succeeds in establishing that counsel‟s performance was 

deficient, he must also prove the prejudice element by showing that “there is a reasonable 

probability that, but for counsel‟s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. See also Roman, 125 Idaho at 649, 873 P.2d at 

903. In a post-conviction proceeding challenging an attorney‟s failure to pursue a motion in the 

underlying criminal action, the Court examines the probability of success of the motion in 

question in determining whether the attorney‟s inactivity constituted incompetent performance. 

Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006); Thomas v. State, 145 Idaho 765, 

770, 185 P.3d 921, 926 (Ct. App. 2008). Where the alleged deficiency is counsel‟s failure to file

a motion, a conclusion that the motion, if pursued, would not have been granted by the trial 
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court, is generally determinative of both prongs of the Strickland test. Thomas, 145 Idaho at 770, 

185 P.3d at 926.

III.

ANALYSIS

Hoskins contends that if his defense attorney had filed a suppression motion, the 

methamphetamine found in his car should have been suppressed because the warrantless search 

of his car violated the Fourth Amendment to the United States Constitution. The Fourth 

Amendment prohibits government agents from conducting unreasonable searches of persons or 

property. Searches that have not been authorized by a search warrant are presumed to be 

unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. 

Katz v. United States, 389 U.S. 347, 357 (1967); State v. Bishop, 146 Idaho 804, 815, 203 P.3d 

1203, 1214 (2009). 

Hoskins implicitly acknowledges that his defense attorney likely determined not to file a 

suppression motion because he concluded that under Fourth Amendment jurisprudence, the 

warrantless search of Hoskins‟ vehicle would be upheld by Idaho courts under the warrant 

exception for searches conducted incident to the arrest of a vehicle occupant. Hoskins does not 

dispute that in view of then-existing Idaho appellate court decisions interpreting and applying 

United States Supreme Court precedent on this warrant exception, defense counsel would have 

been correct. Hoskins argues, however, that a subsequent decision of the United States Supreme 

Court, Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710 (2009), establishes that the Idaho 

decisions on which defense counsel relied were erroneous and that a suppression motion in his 

case therefore would have been meritorious. 

Addressing this issue requires that we review the evolution of the warrant exception for 

searches of vehicles incident to the arrest of an occupant. In Chimel v. California, 395 U.S. 752, 

762-63 (1969), the United States Supreme Court held that police may conduct a warrantless 

search of a person incident to a lawful arrest for the purposes of preservation of evidence and 

officer safety. Specifically, the Court held:

When an arrest is made, it is reasonable for the arresting officer to search the 

person arrested in order to remove any weapons that the latter might seek to use in 

order to resist arrest or effect his escape. Otherwise, the officer‟s safety might 

well be endangered, and the arrest itself frustrated. In addition, it is entirely 

reasonable for the arresting officer to search for and seize any evidence on the 

arrestee‟s person in order to prevent its concealment or destruction. And the area 
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into which an arrestee might reach in order to grab a weapon or evidentiary items 

must, of course, be governed by a like rule. A gun on a table or in a drawer in 

front of one who is arrested can be as dangerous to the arresting officer as one 

concealed in the clothing of the person arrested. There is ample justification, 

therefore, for a search of the arrestee‟s person and the area „within his immediate 

control‟--construing that phrase to mean the area from within which he might gain 

possession of a weapon or destructible evidence.

Id.

In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court applied Chimel in the 

context of an automobile search. Recognizing that Chimel authorized, incident to a lawful 

custodial arrest, warrantless searches of not only the person arrested but also the immediately 

surrounding area, the Belton Court concluded that “no straightforward rule” had emerged from 

lower courts‟ application of Chimel regarding the “proper scope of a search of the interior of an 

automobile incident to a lawful custodial arrest of its occupants.” Belton, 453 U.S. at 457-59. 

The Court determined that because the passenger compartment of an automobile is “generally, 

even if not inevitably, within „the area into which an arrestee might reach in order to grab a 

weapon or evidentiary ite[m], . . . .‟ when a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the 

passenger compartment of that automobile.” Id. at 460 (quoting Chimel, 395 U.S. at 763). Idaho 

appellate courts interpreted Belton as permitting the search of a vehicle incident to an occupant‟s 

arrest even after the occupant had been handcuffed and placed in a patrol car or otherwise 

secured at a distance from the vehicle. State v. Charpentier, 131 Idaho 649, 651-53, 962 P.2d 

1033, 1035-36 (1998); State v. Smith, 120 Idaho 77, 80, 813 P.2d 888, 891 (1991); State v. 

Champagne, 137 Idaho 677, 680, 52 P.3d 321, 324 (Ct. App. 2002); State v. McIntee, 124 Idaho 

803, 805, 864 P.2d 641, 643 (Ct. App. 1993).

In 2004, in Thornton v. United States, 541 U.S. 615, 623 (2004), the Supreme Court 

reaffirmed that “[o]nce an officer determines that there is probable cause to make an arrest, it is 

reasonable to allow officers to ensure their safety and to preserve evidence by searching the 

entire passenger compartment.” However, Justice Scalia‟s concurring opinion in Thornton

severely criticized the majority‟s reliance on officer safety and preservation of evidence as 

justifications for a search when the arrestee is handcuffed and secured in a patrol car. Id. at 625-

29 (Scalia, J., concurring in judgment). This concurrence, in which Justice Ginbsurg joined, 

attacked the theoretical underpinnings of Belton and asserted that “[i]f Belton searches are 
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justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, 

but simply because the car might contain evidence relevant to the crime for which he was 

arrested.” Thornton, 541 U.S. at 629. Justice Scalia concluded that Belton searches should be 

limited “to cases where it is reasonable to believe evidence relevant to the crime of arrest might 

be found in the vehicle,” but he concurred in the judgment because that circumstance was present

in the case before the Court. Id. at 632. Justice O‟Connor also penned a concurrence in the 

judgment, suggesting that “Belton’s shaky foundation” had eroded the law and might be 

modified were the issue squarely presented. Id. at 624-25. Two dissenting justices, Justices 

Stevens and Souter, argued that Belton should be overruled. Id. at 632-36.

Five years later in 2009, after Justice O‟Connor and Chief Justice Rehnquist had been 

replaced by Chief Justice Roberts and Justice Alito, the United States Supreme Court issued its 

decision in Gant. In a five-to-four opinion authored by Justice Stevens, the Court responded to 

the “chorus” that had called for the Supreme Court to revisit Belton. The Court rejected a broad 

reading of Belton that would “authoriz[e] a vehicle search incident to every recent occupant‟s 

arrest.” Gant, ___ U.S. at ___, 129 S. Ct. at 1716-19. The Court stated that the search incident 

to arrest exception to the warrant requirement “derives from interests in officer safety and 

evidence preservation that are typically implicated in arrest situations.” Id. The Court 

continued:

In Chimel, we held that a search incident to arrest may only include “the 

arrestee‟s person and the area „within his immediate control‟--construing that 

phrase to mean the area from within which he might gain possession of a weapon 

or destructible evidence.” That limitation, which continues to define the 

boundaries of the exception, ensures that the scope of a search incident to arrest is 

commensurate with its purposes of protecting arresting officers and safeguarding 

any evidence of the offense of arrest that an arrestee might conceal or destroy. If 

there is no possibility that an arrestee could reach into the area that law 

enforcement officers seek to search, both justifications for the search-incident-toarrest exception are absent and the rule does not apply.

Id. at ___, 129 S. Ct. at 1716 (internal citations omitted). The Court acknowledged that many 

jurisdictions, like Idaho, had understood Belton “to allow a vehicle search incident to the arrest 

of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at 

the time of the search,” Gant, ___ U.S. at ___, 129 S. Ct. at 1718, but held that this interpretation 

of Belton was incorrect. This broad application of Belton, the Court said, would “untether the 

rule from the justifications underlying the Chimel exception--a result clearly incompatible with 
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our statement in Belton that it „in no way alters the fundamental principles established in the 

Chimel case regarding the basic scope of searches incident to lawful custodial arrests.‟” Gant,

___ U.S. at ___, 129 S. Ct. at 1719. Thus, the Gant Court held that “the Chimel rationale 

authorizes police to search a vehicle incident to a recent occupant‟s arrest only when the arrestee 

is unsecured and within reaching distance of the passenger compartment at the time of the 

search.” Id.

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 The Court also announced a new warrant exception that is separate and distinct 

from the “reaching distance” exception announced in Chimel: “Although it does not follow from 

Chimel, we also conclude that circumstances unique to the vehicle context justify a search 

incident to a lawful arrest when it is „reasonable to believe evidence relevant to the crime of 

arrest might be found in the vehicle.‟” Gant, ___ U.S. at ___, 129 S.Ct. at 1719 (quoting 

Thornton, 541 U.S. at 632) (Scalia, J., concurring in judgment)). 

It appears that if the standards announced in Gant were applied, a suppression motion 

might have merit in Hoskins‟ case. That does not mean, however, that Hoskins has shown that 

he received ineffective assistance of counsel. The Sixth Amendment entitles criminal defendants 

to reasonably competent counsel, but not perfect or prescient counsel. Brown v. United States,

311 F.3d 875, 878 (8th Cir. 2002) (holding that counsel‟s performance was not deficient for

failing to predict future developments in the law); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 

1981) (“[C]ounsel is normally not expected to foresee future new developments in the 

law . . . .”); Schoger v. State, 148 Idaho 622, 630, 226 P.3d 1269, 1277 (2010) (observing that 

only in a very rare case would counsel‟s performance be deemed ineffective for failing to make 

an objection that would have been overruled under then-prevailing law). 

Hoskins argues that because the Gant majority opinion says that it is not changing, 

modifying, or overruling Belton but only correcting the erroneous interpretation of Belton by 

lower courts, his defense attorney‟s deficiency was failing to raise the existing law under Belton, 

not failing to anticipate a change in the law. We are not persuaded. While the Gant opinion may 

not have modified the Supreme Court majority‟s own understanding of their ruling in Belton, it 

certainly changed the state of the law in Idaho and many other jurisdictions that had interpreted 

Belton as allowing the search of a vehicle after the occupant had been removed from the 

 

1 Which, the majority explained, would be the “rare case.” Gant, ___ U.S. at ___, 129 

S. Ct. at 1719 n.4.
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immediate vicinity of the vehicle. Even if that interpretation of Belton was in error, it was the 

state of the law under which all Idaho courts operated until issuance of the Gant opinion some 

seventeen months after Hoskins‟ conviction. Indeed, according to the majority opinion in Gant, 

the same broad interpretation of Belton “predominated” in American jursidictions. Gant, ___ 

U.S. at ____, 129 S. Ct. at 1718. We note, in addition, that the four dissenting justices viewed 

the Gant majority opinion as overruling or modifying Belton, not merely correcting an improper 

interpretation of Belton that had been employed in the lower courts. If four justices of the United 

States Supreme Court view Gant as having changed the law, an Idaho defense attorney can 

hardly be faulted for failing to advance the Gant majority‟s interpretation of Belton before Gant

was decided.

Hoskins also argues that the dissent of two justices in Thornton and the concurring 

opinions of Justice Scalia and Justice O‟Connor in that case foreshadowed the Gant decision and 

were sufficient to alert his defense attorney that a viable suppression motion could be brought by 

urging Idaho courts to recognize that their broad interpretation of Belton was incorrect. That is, 

Hoskins contends that his own attorney should have done what Gant‟s attorney did in the 

Arizona state court proceedings that ultimately led to the United States Supreme Court‟s decision 

in that case. To accept this argument would be to expect an attorney to have divined from the 

various opinions in Thornton a direction of the Supreme Court that eluded enumerable appellate 

court judges across the country who reexamined the Belton rule after Thornton. As a footnote in 

the Gant opinion acknowledges, appellate court approval of vehicle searches incident to arrest 

after the arrestee had been handcuffed and secured in a parole car did not “abate” after the 

Supreme Court decided Thornton. See Gant, ___ U.S. at ___ n.3, 129 S. Ct. at 1718 n.3 and 

cases cited therein. 

Despite his protests to the contrary, Hoskins is asking this Court to hold his defense 

counsel deficient for failing to anticipate future developments in the law. The constitutional 

standard for effective assistance of counsel does not demand such prescience. Accordingly, we 

agree with the district court‟s assessment that Hoskins‟ claim for ineffective assistance of 

counsel is without merit.

The district court‟s order dismissing Hoskins‟ petition for post-conviction relief is 

affirmed. No costs or attorney fees to either party.

Judge GUTIERREZ and Judge GRATTON CONCUR.