               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40783

STATE OF IDAHO,                                  )     2014 Unpublished Opinion No. 616
                                                 )
       Plaintiff-Respondent,                     )     Filed: July 10, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
MICHAEL ROBERT TRACY,                            )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction for possession of a controlled substance, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Michael Robert Tracy appeals from the judgment of conviction entered upon his
conditional guilty plea to possession of a controlled substance (marijuana). Tracy argues that the
district court erred by denying his motion to suppress. Specifically, Tracy contends that the
district court erred by finding that an exigent circumstance justified the warrantless entry into
Tracy’s apartment. For the reasons that follow, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       A 911 dispatcher received a morning telephone call that reported a possible domestic
disturbance at an apartment in Boise. The caller reported hearing loud noises and crying and
thought that a female was being thrown inside the apartment occupied by Tracy, his wife
(Desirae), and children. Tracy left the apartment, according to the 911 caller. In addition, the
911 caller mentioned prior domestic disturbances between the Tracys.          Two Boise Police



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Department officers were dispatched to the apartment and, en route, one of the officers spoke to
the 911 caller, a neighbor of Tracy. When the officers arrived at the apartment, one of the
officers knocked on the front door. Desirae answered, and the officers saw one child (the older
child) in the apartment from their vantage point outside the front door. After explaining the
reason they were there, the officers were informed by Desirae that Tracy was gone and that she
had a second child (the younger child) upstairs. The officers asked to come in the apartment, but
Desirae refused and volunteered to bring the younger child to the officers. One officer, who
testified as to her experience with both child abuse cases and domestic disturbance cases,
recalled that she was concerned at that point and “thought it was highly likely that the male
subject . . . was most likely upstairs.” Desirae proceeded upstairs and returned with the younger
child.
         When Desirae returned with the younger child, the officers saw that the child had red
marks and indentations over his face, arms, and stomach. After one of the officers asked Desirae
what was wrong with the younger child, Desirae responded that the child had been sleeping.
According to one officer, she was not satisfied with Desirae’s response about the younger child
and so she told Desirae that she wanted to come in the apartment “to make sure that there was
nobody hurt inside the residence, and basically be able to verify that no one else was injured
inside.” The officers then entered the apartment; one officer stayed with Desirae downstairs
while the other officer proceeded upstairs. While looking in one of the rooms upstairs, the
officer saw a marijuana-grow operation in plain view, but did not find any other persons. Tracy
was charged by information with manufacturing a controlled substance (marijuana); felony
possession of a controlled substance (marijuana); and possession of drug paraphernalia. Desirae
was charged with the same crimes and the cases were consolidated. Tracy filed a motion to
suppress the evidence, and Desirae joined in that motion. After a hearing, the district court
denied Tracy’s motion to suppress, finding an exigent circumstance existed to justify the
warrantless entry into the apartment. Tracy then entered a conditional plea of guilty to felony
possession of a controlled substance, reserving his right to appeal the denial of his motion to
suppress. 1 Tracy appeals.



1
       The manufacturing a controlled substance charge and the possession of drug
paraphernalia charge were dismissed as part of the conditional plea agreement.

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                                                 II.
                                    STANDARD OF REVIEW
         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).
                                                III.
                                            ANALYSIS
         Tracy argues that the district court erred by denying his motion to suppress. Specifically,
Tracy contends that the district court erred by finding that an exigent circumstance justified the
warrantless entry into Tracy’s apartment.
         The Fourth Amendment to the United States Constitution and article I, section 17 of the
Idaho Constitution each forbid unreasonable searches and seizures. 2 State v. Hansen, 151 Idaho
342, 346, 256 P.3d 750, 754 (2011). “But when it comes to the Fourth Amendment, the home is
first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his
own home and there be free from unreasonable governmental intrusion.’” Florida v. Jardines,
569 U.S. ___, ___, 133 S. Ct. 1409, 1414 (2013) (quoting Silverman v. United States, 365 U.S.
505, 511 (1961)); accord State v. Reynolds, 146 Idaho 466, 469, 197 P.3d 327, 330 (Ct. App.
2008).     Accordingly, an officer’s warrantless entry into a residence is presumptively
unreasonable. Reynolds, 146 Idaho at 469-470, 197 P.3d at 330-31. The presumption may be
overcome under a limited, well-recognized exception, such as the exigent circumstances
exception. Payton v. New York, 445 U.S. 573, 589-90 (1980). Once inside a residence, “law
enforcement officers may seize evidence in plain view, provided that they have not violated the

2
       Although Tracy contends that both constitutions were violated, he provides no cogent
reason why article I, section 17 of the Idaho Constitution should be applied differently than the
Fourth Amendment to the United States Constitution in this case. Therefore, the Court will rely
on judicial interpretation of the Fourth Amendment in its analysis of Tracy’s claims. See State v.
Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).

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Fourth Amendment in arriving at the spot from which the observation of the evidence is made.”
Kentucky v. King, 563 U.S. ____, ____, 131 S. Ct. 1849, 1858 (2011) (citing Horton v.
California, 496 U.S. 128, 136-40 (1990)).
       The exigent circumstances exception “applies when ‘the exigencies of the situation’
make the needs of law enforcement so compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment.’” King, 563 U.S. at ___, 131 S. Ct. at 1856 (alteration
in original) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). Thus, warrantless searches
may be performed by state agents “when there is compelling need for official action and no time
to secure a warrant.” State v. Araiza, 147 Idaho 371, 374, 209 P.3d 668, 671 (Ct. App. 2009).
The United States Supreme Court has recognized a number of exigent circumstances. Missouri
v. McNeely, 569 U.S. ___, ___, 133 S. Ct. 1552, 1558 (2013).                 Among these is “law
enforcement’s need to provide emergency assistance to an occupant of a home.” Id. (citing
Michigan v. Fisher, 558 U.S. 45, 47-48 (2009) (per curiam)); Araiza, 147 Idaho at 375, 209 P.3d
at 672. We examine the totality of the circumstances to determine whether an exigency existed
such that a law enforcement officer was justified in acting without a warrant. McNeely, 569 U.S.
at ___, 133 S. Ct. at 1559; see also State v. Pearson-Anderson, 136 Idaho 847, 850, 41 P.3d 275,
278 (Ct. App. 2001) (“In addressing Pearson-Anderson’s argument, we must determine whether
the officer’s entry was reasonable in light of the totality of the circumstances.”).
       Tracy argues that there was not an exigent circumstance that permitted the officers to
enter the apartment without a warrant. Specifically, Tracy contends there was not an imminent
threat to Desirae and, thus, there was no exigency justifying the officers’ warrantless entry and
search of the apartment. Tracy notes that when police arrived at the apartment, there was no
yelling, no sounds, nor evidence of a fight. He also contends that Desirae and the older child
were uninjured when the police arrived at the apartment. As for the younger child who had red
marks, Tracy asserts that Desirae gave an explanation for the red marks and that the marks did
not merit immediate action. The State argues that the police were allowed to enter the apartment
to ascertain the well-being of any persons inside. The district court found that an exigent
circumstance existed, based on the totality of the circumstances. It determined that reasons
existed for concern, even though Desirae attempted to assure the officers that there was no need
for police concern. The district court also found that the officers had observed what appeared to
be recent injuries to the younger child.


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       Applicable to this case is the exigent circumstance that permits a law enforcement officer
to enter a residence “to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Araiza, 147 Idaho at 375, 209 P.3d at 672 (citing Brigham City
v. Stuart, 547 U.S. 398, 403 (2006)). We must look at the facts objectively to determine if the
police officers had a reasonable belief that someone was in imminent danger or injured in the
apartment, based on the facts known to the officers and reasonable inferences from the facts. Id.
at 374-75, 209 P.3d at 671-72. In this case, when the officers decided to enter the apartment they
knew they had responded to a domestic disturbance call made by a neighbor and the officers
knew of prior incidents involving Tracy at the apartment. The officers did not hear any sounds
of a disturbance upon approaching the apartment and they only saw Desirae and the older child
after knocking on the door and during the initial discussion with Desirae. Additionally, the
whereabouts of Tracy were unknown. Even though the 911 caller had reported that Tracy had
left the residence and Desirae told officers that Tracy had left, there was a back door to the
apartment that one of the officers saw from their vantage point looking through the apartment.
        Although the officers did not see any injuries to Desirae or the older child, after Desirae
brought the younger child down to the officers, they saw red marks over the younger child’s
face, arms, and stomach, along with indentations. This prompted the officers to ask Desirae
what was wrong with the child, and her response was that the child had been sleeping and that
the marks would disappear. 3 The officer who testified at the suppression hearing testified as to
her experience with both child abuse cases and domestic disturbance cases, and also noted that in
her experience, children could be injured during domestic violence. She further testified that
upon seeing the younger child, she became concerned that the child was injured and that the
child was involved in the altercation between Tracy and Desirae. 4
       We have addressed the exigent circumstances exception to the warrant requirement in
domestic disturbance cases. In Reynolds, three officers were dispatched at night to investigate a
telephoned report that Mrs. Reynolds was being held against her will by Mr. Reynolds. The
officers arrived simultaneously and saw Mr. Reynolds standing just outside of the front door,

3
        Both officers testified that the appearance of the child concerned them. One officer said
she did not feel that the child would look as it did just from waking up from a nap.
4
       If the child was injured and the mother was not seeking or admitting to the need for help,
a reasonable inference may be that she was afraid of or protecting someone.

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which was ajar. Two of the officers approached Mr. Reynolds and began to question him about
the reported altercation.   In the meantime, a third officer entered the home through the
partially-opened front door. He did not hear any noises coming from the house, nor did he first
knock, announce his presence, or call for Mrs. Reynolds. The State argued that the third
officer’s entry into the home was permissible due to an exigent circumstance. We concluded
otherwise. Reynolds, 146 Idaho at 471, 197 P.3d at 332. With Mr. Reynolds outside, we noted
that “it was apparent that if there was a woman in the house, she was under no immediate risk of
harm from [Mr.] Reynolds while he was outside being questioned by an officer.” Id. However,
if the third officer “had first knocked or called out to occupants and received no response, the
telephoned report of a woman being held against her will could have justified a warrantless entry
to ensure that there was no one in the house who was physically restrained or too frightened to
respond to the officers.” Id. The only evidence the officer had in Reynolds when the officer
entered the house was an unsubstantiated phone call. In contrast, the officers in this case, before
entering the apartment, saw the younger child with red marks over its face, stomach, and arms.
It was not unreasonable for the officers to have inferred that child was injured, based on the
marks and the fact that the officers were responding to a report of a domestic disturbance.
       In State v. Wiedenheft, 136 Idaho 14, 27 P.3d 873 (Ct. App. 2001), we upheld the
officers’ entry into Wiedenheft’s residence based on the totality of the circumstances. Police
officers were dispatched to Wiedenheft’s residence in the early morning hours following a 911
call reporting a possible domestic violence altercation. When officers arrived, the house was
dark and there were no noises coming from the home. The officers knocked on the door. An
interior light came on and then went off again. Wiedenheft looked out the window and then
closed the shade. The officers knocked again and Wiedenheft answered the door. One officer
identified himself and explained to Wiedenheft that they were there to investigate the report of a
battery. At this time, the officers noticed that Wiedenheft had a red swollen area in the middle of
her forehead and appeared to have been recently injured. Wiedenheft also appeared to be
shaking slightly, had an unsteady voice, and was visibly upset. After the officers requested to
gain entry to the home, Wiedenheft refused, and an officer placed his foot in the door. We
concluded that an exigency existed and justified the officers’ warrantless entry into Wiedenheft’s
residence, based on the totality of the circumstances. Id. at 17, 27 P.3d at 876. Although
upholding the warrantless entry, we cautioned “that a prompt and limited search of the scene


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should be strictly circumscribed by the exigency, to assist an injured party or deal with the
perpetrator, and cannot be used to support a general exploratory search.” Id.
       In this case, although Desirae stood in the door and visually appeared uninjured, the
officers reasonably could have inferred that the younger child had been recently injured, viewing
the red marks over the younger child’s face, arms, and stomach. The officer’s testimony at the
suppression hearing, based on her experience with child abuse cases and domestic violence
cases, noted her concern that the child had been involved in the domestic disturbance because of
the perceived injury to the child. Additionally, the whereabouts of Tracy were unknown, even
though Desirae and the 911 caller said he had left the apartment. Because the 911 caller had
reported loud noises, including what she thought was a female being thrown inside, it was not
unreasonable for the officers to have been concerned about the well-being of the younger child
when Desirae stood at the door visibly uninjured. In Wiedenheft, the circumstances of the
apparent injury and the domestic disturbance call gave rise to an exigent circumstance that
permitted law enforcement to enter the home. Here, the domestic disturbance call and apparent
injury to the child give rise to an exigent circumstance permitting the officers to enter the
apartment. Considering the totality of the circumstances, we are persuaded that an exigent
circumstance existed that permitted the officers to make a warrantless entry into the apartment.
The district court did not err by denying Tracy’s motion to suppress. Accordingly, the judgment
of conviction entered upon Tracy’s conditional guilty plea to possession of a controlled
substance (marijuana) is affirmed.
       Judge GRATTON CONCURS.
       Judge LANSING CONCURS IN THE RESULT.




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