1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38230

STATE OF IDAHO , Plaintiff-Respondent ,

v.

KURT A. SMITH , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2011 Opinion No. 71

Filed: December 7, 2011
Stephen W. Kenyon, Clerk

Appeal from the District C ourt of the First Judicial District, State of Idaho, Kootenai County. Hon. Fred M. Gibler , District Judge.
Judgment of conviction for trafficking in marijuana in excess of one pound, affirmed

. Larry D. Purviance, Hayden, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

________________________________________________ MELANSON, Judge Kurt A. Smith appeals from his judgment of conviction for trafficking in marijuana in excess of one pound. Specifically, Smith challenges the district court’s order den ying his motion to suppress. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE A police officer responding to a domestic dispute learned that the suspect had fled the scene on foot into a sparsely

- populated
, wooded area. While the officer was searching for the suspect , he came acro ss a car parked in a large pull

- o ut area at the end of a road. When the
officer flashed h is spotlight toward the car
, a man later identified to be Smith exited and walked
toward t he officer’s patrol car. As Smith approached, the officer ascertained that Smith did not match the description of the domestic violence suspect. The officer began conversing with
Smith about whether he had seen the domestic violence suspect and eventuall y ask ed Smith for2 identification. Smith agreed to give the officer his identification , but stated that it was in his car.
The officer followed Smith as he returned to his car to get his identification. Smith got into the driver’s side door, while the of ficer walked to the passe nger side. The officer loo ked through the
window and saw a marijuana pipe sitting on the front seat of the car. The officer asked Smith how much marijuana was in the car. Smith grabbed the pipe and stated that it was the only
il legal thing in the vehicle. Smith had a large dog in the back of the car that was growling at the officer. The officer
asked Smith to remove and restrain the dog so that he could search the interior of the car. Smith grabbed a backpack from the car and used its straps to t ake the dog from the car

. The officer, who noticed the car was filled with camping gear, asked Smith if he had anything else that he could use to restrain his dog, but Smith ignored his question and continued to use the backpack.
With the dog restrained, the officer proceeded to search the vehicle. On the passenger seat
, he found a zippered case which contained a tin with a small amount of marijuana inside. The officer then told Smith to place the dog back into the vehicle. Smith pu t the dog back in the car but continued to clutch the backpack. The officer asked Smith why he was so attached to the backpack and
, when Smith did not respond
, the officer asked Smith to hand over the backpack. The backpack was partially open and the off icer found a square object wrapped in duct tape
inside . When the officer asked Smith w hat the object contained
, Smith told the officer to open it and find out. The object contained marijuana and the officer found additional marijuana
elsewhere in the bac kpack. Smith was charged with trafficking in marijuana in excess of one pound, I.C. § 37

- 2732B (a) (1)(A) , and possession of drug paraphernalia, I.C. § 37

- 2734A(1). Smith filed a motion to suppress the eviden ce found in the backpack
, arguing the warrantless search was unlawful. After a hearing, the district court denied Smith’s motion to suppress. The district court found that the officer had probable cause to arrest Smith at the time of the search and, therefore, the search was justified as a search incident to arrest. Smith was found guilty by a jury of both counts and was sentenced to a unified term of six years
, with a minimum period of confinement
of one and a half years
, for trafficking in marijuana in excess of one pound and a concurr ent term of 180 days for possession of drug paraphernalia. Smith appeals , challenging the denial of his motion to suppress as to his judgment of conviction for trafficking in marijuana in excess of one pound

.3 II.
ANALYSIS Smith argues that the district court erred in denying his motion to suppress. Specifically, Smith asserts that the search of the backpack violated his Fourth Amendment right against
unreasonable searches and seizures because the officer did not have a warrant for the search and
the sea rch did not fall i nto any exception to the warrant requirement. 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 subst antial 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 witness es, 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 prohibits unreasonable searches and seizures. Warrantless searches are presumed to be unreasonable and therefore violative of
the Fourth Amendment. State v. Weaver , 127 Idaho 288, 290, 900 P.2d 196, 198 (1995). The state may overcome this presumption by demonstrating that a warrantless search either fell
within a well

- recognized exception to the warrant requirement or was otherwise reasonable
under the circumstances. Id. S earch of a vehicle incident to lawful arrest is among the well

recognized exceptions to the Fourth Amendment ’ s warrant requirement. Chimel v. California
, 395 U.S. 752, 762

- 63 (1969); State v. McIntee , 124 Idaho 803, 804, 864 P.2d 641, 642 (Ct. App. 1993). However, authorities may onl y search a vehicle incident to arrest when it is reasonable to
believe the vehicle contains evidence of the crime of arrest or when the arrestee is within reaching distance of the passenger compartment at the time of the search. Arizona v. Gant , 556
U.S. 332 , ___, 129 S. Ct. 1710, 1723

- 24 (2009). This exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. Gant , 556 U.S. at ___, 129 S. Ct. at 1716. The district court applied the Gant search of a vehicle incident

- to

- arrest exception in this

case. The district court found that, because the officer had probable cause to arrest Smith at the time of the search, the Gant exception applied. On appeal, Smith argues that the search incid ent

to

- arrest exception should not apply in his case because he was not formally arrested at the time4 the search took place. T he state argues that the search of Smith’s backpack falls into the search
incident

- to

- arrest exception to the warrant requirement because, even though Smith was not formally arrested at the time of the search, the officer had probable cause to arrest Smith at the time he searched the backpack. We begin by noting that Smith objects to the search of the backpack and not to the searc h of the interior of the vehicle. At the time the officer searched the backpack, it was not physically within the interior compartment of the vehicle. The backpack was, however, part of the contents
of the car and the officer watched Smith remove the bac kpack from the car’s back seat. Under these circumstances, it is immaterial that the search of the backpack occurred outside the vehicle’s compartment because the backpack was part of the original contents of the car and the
officer saw Smith remove it

. Therefore, we will treat the search of the backpack as we would a
search of the car’s interior and contents.
W e recognize that, u nlike in Gant , Smith was not formally arrested until after the search
of the b ackpack occurred. We must determine, therefore , whether the search incident

- to

- arrest exception t o the warrant requirement laid out in Gant applies to a search of vehicle which takes place prior to a suspect’s formal arrest. This is a matter of first impression in Idaho. In Rawlings v. Kentucky , 448 U.S. 98 (1980), the United States Supreme Court addressed this question in regard to the warrantless search of a person . The Court held that a suspect need not be formally arrested prior to a search of his or her person as long as probable cause for the suspect’s arrest
existed at the time of the search. Id. at 111. So long as the search and the arrest are substantially contemporaneous, and the fruits of the search are not required to establish probable cause for the arrest, the search need not precisel y follow the arrest in order to be incident to that arrest. State
v. Johnson , 137 Idaho 656, 662, 51 P.3d 1112, 1118 (Ct. App. 2002). Idaho cases which have applied Rawlings have applied it to searches of a suspect’s person, not of a vehicle. See State v. Chapman , 146 Idaho 346, 351, 194 P.3d 550, 555 (Ct. App. 2008); State v. Gibson , 141 Idaho 277, 282, 108 P.3d 424, 429 (Ct. App. 2005); State v. Robertson , 134 Idaho 180, 186, 997 P .2d 641, 647 (Ct. App. 2000). We recognize that the search of the backp ack could be viewed as a search of Smith’s person. If so, the search would be permissible because the officer had probable cause to arrest Smith prior to the search of the backpack and arrest followed immediately after the search. This, alone, is suffici ent to permit the search of the backpack.5 The United States Court of Appeals for the District of Columbia has applied Rawlings to a case involving a warrantless search of a vehicle incident to arrest. See U nited States v. Powell
, 483 F .3d 836 , 839 (D.C. Cir. 2007). In Powell , officers came across two men urinating behind a parked car. Two officers approached the men with the intent of arresting them for public urination. Another officer, who had seen a th ird person sitting in the passenger seat of the car, went to the vehicle. The officer saw three clear cups in the car containing a yellow liquid which smelled like alcohol. The officer directed the passenger , later identified as Powell, to get out of the car with the intention of arresting him for possession of an open container of alcohol in a vehicle upon a public way. The officer then conducted a search of the vehicle and found a bottle of alcohol and a handgun. Powell was subsequently arrested and charged with being a felon in possession o f a firearm. Powell filed a motion to suppress the evidence found in the vehicle.
Powell’s motion was denied
, and he was subsequently convicted and appealed. On appeal
, the
court, c iting to Rawlings , held the search of the vehicle was valid because the officers had probable cause to arrest Powell prior to the search of the vehicle and the formal arrest occurred immediately after the search. Powell , 483 F.3d at 839.
Based on Rawlings and Powell , we perceive no reason to treat the search of a vehicle
incident to arrest differently from a search of a person incident to arrest with regard to the timing
of the formal arrest

. In this case, the marijuana found in Smith’s backpack was not necessary to establish p robable cause for his arrest. T he officer ha d probable cause to arrest Smith for possession of drug paraphernalia prior to the search of the backpack because the officer saw a marijuana pipe on the passenger seat of Smith’s car. In addition, Smith’s formal arrest occurred immediately after the sear ch of the backpack. Accordingly, although Smith was not formally arrested prior to the search of the backpack , this does not prevent t he search of a vehicle
incident

- to

- arrest exception to the warrant requirement laid out in Gant from applying in this

case. Under the second prong of Gant , it was reasonable for the officer to believe that Smith’s backpack contained evidence of the crime of arrest. The officer saw drug paraphernalia
associate d with the use of marijuana in plain si ght on the front seat of Smith’s car. At the motion to suppress hearing, the officer stated that, in his experience, when he finds a marijuana pipe there are often drugs as well. In addition, the officer testified that his suspicions were aroused by
Smit h’s statement that the pipe was the only illegal thing in the car. Smith’s actions in using the6 backpack to leash his dog and continuing to hug it after the dog was placed back into the car,
Smith’s failure to answer the officer’s direct questions concern ing the backpack, and Smith’s nervous demeanor provided the officer with a reasonable belief that the backpack contained
evidence of the crime of Smith’s arrest. Therefore, we hold that the officer had reasonable suspicion to believe, under Gant , that Smi th’s backpack contained evidence of the crime of his

arrest. Accordingly, the district court did not err in denying Smith’s motion to suppress on these grounds. We note that the search of Smith’s backpack was also justified by another exception to
the w arrant requirement. The automobile exception to the warrant requirement authorizes a warrantless search of a vehicle when there is probable cause to believe the vehicle contains contraband or evidence of criminal activity. United State s v. Ross , 456 U.S. 798, 824 (1982). In Ross, an informant told officers that an individual was selling drugs out of the trunk of his car. The informant gave the officers a description of the man and his car. Based on this information, the officers stopped Ross’s vehicle and asked Ross to exit the car. The officers then searched the interior of the car and found a bullet on the front seat and a pistol in the glove box. Ross was then arrested. The officers continued their search of the vehicle and eventually found a larg e quantity of cocaine and money in the trunk of the car. Prior to trial, Ross moved to suppress the drugs and money. Ross’s motion was denied and eventually he was convicted. The Court noted that, based on the detailed accuracy of the informant’s tip, the officers had probable cause to search Ross’s entire vehicle. The Court went on to hold that an individual’s expectation of privacy in a vehicle and its contents may not survive if there is probable cause to believe that the vehicle is transporting con traband. Ross , 456 U.S. at 823. If probable cause justifies the search of a lawfully

- stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Id . at 825. The scope of a warrantles s search of an automobile is not defined by the nature of the container in
which the contraband is secreted. Id . at 824. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. I d

. The Idaho Supreme Court has applied the exception to the warrant requirement laid out in
Ross to warrantless searches of automobiles. State v. Gallegos , 120 Idaho 894, 821 P.2d 949 (1991). The police were investigating Gallegos for possible involvem ent with drug trafficking. After following Gallegos for several days, officers determined that he had engaged in a drug7 transaction and decided to stop Gallegos’ vehicle. The officers ran a drug dog around the vehicle Gallegos was driving. When the dog alerted, the officers conducted a search of the car and
discovered cocaine. The officers did not have a search warrant. The Court determined that the police had probable cause as soon as the dog alerted on the rear of the vehicle and therefore it

was pro per for the officers to search the car and its contents without a warrant. Id. at 898, 821 P.2d at 953. This Court has also recently held, citing Gallegos , that police officers may search an automobile and the containers within it when they have probable cause to believe that the
automobile contains contraband or evidence of a crime. See State v. Newman , 149 Idaho 596, 599, 237 P.3d 1222 , 1225 (Ct. App. 2010). Whether the search was incident to Smith’s arrest or pursuant to the automobile exception, probable cause is required. Probable cause is not measured by the same level of proof required for conviction. State v. Fry , 122 Idaho 100, 102, 831 P.2d 942, 944 (Ct. App. 1991). Rather, probable cause deals with the factual and practical considerations on which reasonable and prudent persons act. Brinegar v. United States , 338 U.S. 160, 175 (1949); State v. J ulian,
129 Idaho 133, 136, 922 P.2d 1059, 1062 (1996)

. When reviewing an officer’s actions, the court must judge the facts against an objective standard. Julian, 129 Idaho at 136, 922 P.2d at 1062. That is, would the facts available to the officer, at the moment of the seizure or search, warrant a
reasonab le person in holding the belief that the action taken was appropriate. Id. A probable cause analysis must allow room for mistakes on the part of the arresting officer but only the mistakes of a reasonable person acting on facts which sensibly led to his or her conclusions of probability. State v. Kerley, 134 Idaho 870, 874, 11 P.3d 489, 493 (Ct. App. 2000). Here, the officer encountered illegal drug paraphernalia in plain sight. At the motion to suppress hearing, the officer stated that, in his experie nce, when he finds a marijuana pipe there are often drugs as well. In addition, the officer testified that his suspicions were aroused by Smith’s statement that the pipe was the only illegal thing in the car. These facts would lead a reasonable person to believe that contraband might be found in Smith’s car. Therefore, we hold the officer had probable cause to search Smith’s car. In addition, Smith’s actions in using the backpack to leash his dog and continuing to hug it after the dog was placed back i nto the car, failure to answer the officer’s direct questions concerning the backpack, and nervous demeanor provided the officer with probable cause to believe that contraband might be found within the backpack. Under the Ross exception to the8 warrant req uirement, the officer had probable cause to search Smith’s vehicle and was justified in searching any of the vehicle’s contents which may have concealed contraband. It is immaterial that Smith removed the backpack from the car prior to the search as it wa s originally part of the contents of the vehicle. Therefore, under the Ross exception to the warrant requirement
, the officer’s actions in searching Smith’s car and its contents were proper. Accordingly, we hold on these alternate grounds that the distri ct court did not err in denying Smith’s motion to suppress.
III.
CONCLUSION We hold that the district court did not err in denying Smith’s motion to suppress because it was justified under the search incident

- to

- arrest exception to the warrant requireme nt and the automobile exceptio n to the warrant requirement . Accordingly, Smith’s judgment of conviction for trafficking in marijuana in excess of one pound is affirmed. Judge LANSING and Judge GUTIERREZ, CONCUR.