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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40950

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MARK CHRISTOPHER HUNTER,

Defendant-Appellant.

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2014 Opinion No. 37

Filed: May 6, 2014

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Kathryn A. Sticklen, District Judge. Hon. L. Kevin Swain, 

Magistrate.

Decision of the district court, in its appellate capacity, reversing magistrate’s

order granting motion to suppress, affirmed and remanded to magistrate court for 

further proceedings.

Alan Trimming, Ada County Public Defender; Erik J. O’Daniel, Deputy Public 

Defender, Boise, for appellant. Erik J. O’Daniel argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. Lori A. Fleming argued.

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SCHWARTZMAN, Judge Pro Tem

Mark Christopher Hunter appeals from the district court’s intermediate appellate decision 

reversing the magistrate’s order granting his motion to suppress evidence. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The parties stipulated to the following facts. Shortly after midnight, an officer stopped 

Hunter for driving several blocks without headlights. The officer smelled the odor of alcohol 

coming from the vehicle. Hunter admitted he had been drinking that night; the female passenger 

in the vehicle appeared to be heavily intoxicated. The officer checked Hunter’s eyes and 
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observed nystagmus.1 He then requested the assistance of a Safety Traffic Enforcement Program 

(STEP) officer2 to help in the investigation. Officer Robert Gibson arrived to administer field 

sobriety tests and had Hunter exit the vehicle. Hunter told the officer he was coming from a bar 

and had earlier watched MMA fights at an arena. He also admitted to drinking three vodka 

tonics between 7:30 p.m. and 10:30 p.m. Officer Gibson smelled the odor of alcohol coming 

from Hunter and observed that Hunter’s eyes were glassy and bloodshot. 

Officer Gibson had Hunter perform several sobriety tests on the sidewalk. Hunter

indicated that he was not taking any medications and did not have any physical impairment. 

Officer Gibson conducted the horizontal gaze nystagmus (HGN) test. Neither of Hunter’s eyes 

pursued smoothly and his eyes had distinct and sustained nystagmus. Officer Gibson testified 

that Hunter scored six out of six points on the HGN test. The officer then directed Hunter to 

perform the walk-and-turn test. This test has a maximum of eight errors, with two or more 

points qualifying as a failure. Hunter did not score any errors. Officer Gibson then 

demonstrated the one-leg-stand test. Hunter swayed during the test, but he did not register any 

other errors. This test has a maximum of four errors, with two or more points qualifying as a 

failure. Officer Gibson then re-administered the HGN test and Hunter had the same scoring as 

before. Hunter cooperated throughout the tests. The officer arrested Hunter and secured him in 

the back of the patrol car. A breath test was conducted which registered a breath alcohol 

concentration of .090 and .088. 

At the motion to suppress hearing, Officer Gibson testified that his training and 

experience included completing Idaho POST Academy, attending the Boise Police Advanced 

Academy Field Training Program, as well as almost five years of on-the-job experience, which 

included several hundred DUI investigations. Finally, the officer testified that he had completed 

a class for advanced roadside impairment and breath testing specialist. 

 

1 “Nystagmus” is a term used to describe an involuntary jerking of the eyeball, a 

condition that may be aggravated by the effect of chemical depressants on the 

central nervous system. An inability of the eyes to maintain visual fixation as 

they are turned from side to side is known as “horizontal gaze nystagmus.” 

State v. Garrett, 119 Idaho 878, 880-81, 811 P.2d 488, 490-91 (1991) (citations omitted) 

(quoting State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990)).

2 A STEP officer “is specially trained in the detection and investigation of driving under 

the influence cases.” State v. Hogan, 132 Idaho 412, 413, 973 P.2d 764, 765 (Ct. App. 1999).
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The State charged Hunter with driving under the influence. Hunter moved to suppress 

the breath test. The magistrate granted the motion, concluding that the officer lacked probable 

cause to place Hunter under arrest. The State appealed and the district court reversed the 

magistrate’s order. Hunter now appeals.

II.

ANALYSIS

When reviewing the decision of a district court sitting in its appellate capacity, we review 

the magistrate court’s findings of fact to determine if they are supported by substantial and 

competent evidence. We then determine if the findings support the magistrate’s conclusions of 

law. Based on the district court’s review of the magistrate court’s decision, procedurally we 

either affirm or reverse the district court’s decision. Pelayo v. Pelayo, 154 Idaho 855, 858-59, 

303 P.3d 214, 217-18 (2013). 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). 

The Fourth Amendment to the United States Constitution protects the right of the people 

to be free from unreasonable searches and seizures, “and no Warrants shall issue, but upon 

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, or a misdemeanor committed in the officer’s presence, 

is consistent with the Fourth Amendment if the arrest is supported by probable cause.” 

Maryland v. Pringle, 540 U.S. 366, 370 (2003); see also Idaho Code § 19-603. We freely 
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review, de novo, the trial court’s legal conclusion of whether 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 

application of probable cause to arrest must allow room for some mistakes by the arresting 

officer; however, the mistakes must be those of reasonable persons, acting on facts leading 

sensibly to their conclusion of probability. Klinger v. United States, 409 F.2d 299, 304 (8th Cir. 

1969); Julian, 129 Idaho at 137, 922 P.2d at 1063. 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. 

“The probable-cause standard is incapable of precise definition or quantification into 

percentages because it deals with probabilities and depends on the totality of the circumstances.” 

Pringle, 540 U.S. at 371. “There is a large difference between the two things to be proved [guilt 

and probable cause], as well as between the tribunals which determine them, and therefore a like 

difference in the quanta and modes of proof required to establish them.”3

 Draper v. United 

States, 358 U.S. 307, 312 (1959) (quoting Brinegar v. United States, 338 U.S. 160, 173 (1949)). 

Thus, “[f]inely-tuned standards such as proof beyond a reasonable doubt or by a preponderance 

of the evidence, useful in formal trials, have no place in the [probable cause] decision.” Illinois 

v. Gates, 462 U.S. 213, 235 (1983). 

 

3 “‘[P]robable cause’ does not include or measure up to satisfaction ‘beyond a reasonable 

doubt.’ They are widely different. ‘Beyond a reasonable doubt’ may be likened to the summit 

of a high mountain, and ‘probable cause’ to a halfway station on the mountain side . . . .” State 

v. Arregui, 44 Idaho 43, 63, 254 P. 788, 794 (1927) (quoting United States v. McGuire, 300 F. 

98, 102 (N.D.N.Y. 1924)). 
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Probable cause standards seek to safeguard citizens from rash and unreasonable 

interferences with privacy and from unfounded charges of crime. They also seek to give fair 

leeway for enforcing the law in the community’s protection. Brinegar, 338 U.S. at 176. “The 

rule of probable cause is a practical, nontechnical conception affording the best compromise that 

has been found for accommodating these often opposing interests. Requiring more would 

unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the 

mercy of the officers’ whim or caprice.” Id. 

In its Memorandum Decision, the magistrate found:

It is clear Officer Gibson relied heavily on the defendant’s failure of the 

HGN test in making his decision to arrest. Officer Gibson testified he places 

more importance on that test because the subject cannot practice for the test. This 

does not comport with the applicable law concerning the reliability of the HGN 

test.

Relying on its interpretation of State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), the court 

concluded:

Here the other field sobriety tests not only failed to corroborate the HGN 

test, they completely contradicted it. The defendant demonstrated virtually no 

impairment when performing the one leg stand and no impairment at all when 

performing the walk and turn test. The results of those tests rendered the HGN 

test unreliable as a matter of law. The remaining factors considered by the 

officer, even taken together, fail to rise to the level of probable cause to support 

an arrest.

(Emphasis added.) 

We find this interpretation of Garrett unduly restrictive. Garrett holds that HGN test 

results may not be used at trial to establish a defendant’s blood alcohol level in the absence of 

chemical analysis of his blood, breath, or urine. Garrett, 119 Idaho at 881, 811 P.2d at 491. 

While the theory underlying the HGN test is sound, the test results may only be used to draw 

certain inferences. As circumstantial evidence of intoxication, a positive HGN test result alone is 

not evidence of a certain level of blood alcohol content. Id. at 882, 811 P.2d at 492. By way of 

dicta, the Court also noted that “in conjunction with other field sobriety tests, a positive HGN 

test result does supply probable cause for arrest, standing alone that result does not provide proof 

positive of DUI, because many other factors may cause nystagmus.” Id. at 881, 811 P.2d at 491. 

After reviewing the information available to Officer Gibson, including the HGN test 

results, we hold that under the totality of circumstances the officer had probable cause to arrest 
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Hunter for DUI. See generally State v. Martinez-Gonzalez, 152 Idaho 775, 779-80, 275 P.3d 1, 

5-6 (Ct. App. 2012) (reviewing probable cause to arrest for DUI and examining many other case 

scenarios). Hunter had driven several blocks without headlights. The officer who stopped 

Hunter could smell the odor of alcohol coming from the open driver-side window and Hunter 

told the officer he had been drinking. This officer also observed nystagmus in Hunter’s eyes. 

The female passenger appeared to be heavily intoxicated. Once Hunter exited the vehicle, 

Officer Gibson could smell the odor of alcohol coming from Hunter. The officer observed that 

Hunter’s eyes were glassy and bloodshot. Hunter told the officer that he was coming from a bar 

and that he had consumed three vodka tonics that night. Hunter failed the HGN test, scoring the 

maximum points allowed. Officer Gibson later confirmed the HGN results by administering the 

test for a second time. Hunter also swayed during the one-leg-stand test. Finally, Officer Gibson

had specialized training in DUI cases and had conducted several hundred DUI investigations. 

Though Hunter did not fail each of the field sobriety tests, the remaining information was 

sufficient to supply probable cause. This is especially true because I.C. § 18-8004(1)(a) 

establishes a per se alcohol concentration violation. An individual who has become more 

tolerant to alcohol may not exhibit the same observable functional impairment at the per se legal 

limit as others. Thus, under the totality of circumstances, an officer is not required to ignore 

other indicia of intoxication when an individual partially performs well on field sobriety tests. 

Because Officer Gibson had probable cause to arrest, the breath alcohol evidence recovered after 

the arrest should not have been suppressed.4

III.

CONCLUSION

The evidence was obtained while Hunter was lawfully arrested. Accordingly, the district 

court’s order reversing the magistrate’s decision is affirmed, and the case is remanded to the 

magistrate court for further proceedings.

Chief Judge GUTIERREZ and Judge LANSING CONCUR.

 

4 Hunter argues that the HGN test is less reliable because nystagmus can be naturally 

occurring. However, the existence of an alternative innocent explanation does not negate the

information available establishing probable cause to believe Hunter was driving while 

intoxicated. See State v. Rader, 135 Idaho 273, 276, 16 P.3d 949, 952 (Ct. App. 2000) (finding 

that the existence of alternative explanations did not negate the officer’s reasonable suspicion).