¶1Concurring in the Result.
¶2I will concur in the result despite the fact that many an Idaho driver would, in custom and practice, see no need to operate a turn signal in this hyper-technical situation.
¶3But this case has little to do with a suspected I.C. § 49-808 traffic infraction. Given the fact that the state officer had been following our young driver for over four miles at 12:45 in the morning, and this is the best he could come up with to make a stop, two assumptions become fairly evident: 1) Dewbre did his best to drive in compliance with traffic regulations and 2) one way or the other, he was going to be stopped.
¶4Perhaps this tension is best expressed in the following quote from Whren v. United States, 517 U.S. 806, 818, 116 S.Ct. 1769, 1777, 135 L.Ed.2d 89, 100 (1996):
Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement.
¶5Moreover, our decisions have consistently rejected the so-called “pretext challenge,” i.e. the claim that the police had an ulteñor motive for conducting the stop which was the true basis for the stop or search. State v. Myers, 118 Idaho 608, 798 P.2d 453 (Ct.App.1990); State v. Law, 115 Idaho 769, 769 P.2d 1141 (Ct.App.1989). Thus, an officer’s subjective intent is irrelevant and a stop is not pretextual where there is some objective probable cause to believe that a traffic infraction,
¶6Accordingly, since the officer had some objective measure of probable cause to believe that Dewbre violated the traffic code, the stop would now be constitutionally reasonable and justified.
¶7. My empirical, but thoroughly unscientific, study on this observation was fully vindicated on my trip North over Highway 55/95. With the possible exception of myself, now fully cognizant of the impending oral argument in this case, I can attest that no signals were given by the general travelling public within my line of vision, excluding one slow-moving vehicle dutifully moving to the right. Had I.S.P. Officer Yount been with me, he could have had a field day handing out tickets for alleged 49-808 violations.
¶8. I take no position on whether Dewbre was actually "guilty” of a 49-808 infraction under the circumstances described. A violation might be dependent upon the line of direction a driver maintains when entering and/or exiting this two-lane passing area, not to mention traffic conditions within the area as well. Suffice it to say that it was “close enough” to make a barely plausible traffic stop.