               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42574

STATE OF IDAHO,                                  )   2015 Unpublished Opinion No. 757
                                                 )
       Plaintiff-Respondent,                     )   Filed: December 11, 2015
                                                 )
v.                                               )   Stephen W. Kenyon, Clerk
                                                 )
DEVIN RAY BISCHOFF,                              )   THIS IS AN UNPUBLISHED
                                                 )   OPINION AND SHALL NOT
       Defendant-Appellant.                      )   BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Order denying motion to suppress, reversed; judgment of conviction, vacated;
       case remanded.

       Sara B. Thomas, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Devin Ray Bischoff appeals from the district court’s denial of his motion to suppress.
Bischoff argues that the district court erred in deciding he consented to law enforcement to
search his residence. In the alternative, he argues that any consent given was involuntary due to
the coercive nature of the interaction with law enforcement. For the reasons set forth below, we
reverse the order denying the motion to suppress evidence, vacate Bischoff’s judgment of
conviction, and remand the case to the district court.




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                                                I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       At approximately 9:00 p.m. on January 27, 2014, Coeur d’Alene police officers
responded to a citizen report of a small child walking alone on the road. Citizens in the area
assisted the officers in locating the child’s residence, and officers made contact with the child’s
father, Devin Ray Bischoff. Bischoff informed the officers that he left his three-year-old child,
R.B., alone in his apartment, went to the parking lot to work on a vehicle, and was not aware that
the child had left the apartment.
       The investigation into this incident was recorded on one of the officer’s body cameras
and the video was admitted as an exhibit during the motion to suppress hearing. In order to
determine whether it was safe to leave R.B. in Bischoff’s custody, the officers asked whether
there was anything in the apartment that would make the apartment unsafe for the child and
whether Bischoff was under the influence of or in possession of a controlled substance. Bischoff
was asked several times if the officers could enter the apartment to look for anything that would
be dangerous to R.B. and to look for controlled substances. The following excerpts of the
conversation between Bischoff and the officers illustrate the issue before this Court on appeal--
whether Bischoff consented to the search of his apartment.
               Officer 1: Are you using or anything?
               Bischoff: No.
               Officer 1: Is there anything in your apartment?
               Bischoff: Nope.
               Officer 1: You give my partner permission to look in your apartment and
       go through it?
               Bischoff: Not without my wife.
               ....
               Officer 1: So my question for you is if you think it’s okay for your son to
       be in that apartment, why is it not okay for my partner to go in and see if there’s
       anything dangerous in there?
               Bischoff: There’s nothing dangerous.
               Officer 1: So why can we not go in and look around? You got a bong or
       something like that? I don’t care about bongs and marijuana, dude, I really don’t.
       Is that what’s in there? Is that it?
               Bischoff: Yeah.
               ....
               Officer 1: You going to let my partner go in and get that bong? I’m not
       going to have a bong or a pipe around with the three-year-old kid.
               Bischoff: Okay
               Officer 1: Does he have permission to go in? I’ll talk to your wife, too.

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              ....
              Officer 1: She’s going to flip out on you, isn’t she? Because I’m not
       going to leave him with you, man.
              Bischoff: Okay.
              Officer 1: That’s just not an option.
              Officer 2: Where’s your stuff at?
              Officer 1: Don’t go in there yet. Let me call her first.
       During the call to Bischoff’s wife, she acquiesced to the request to allow a search of the
apartment after she was told that Bischoff had consented. The officers entered the apartment and
found methamphetamine, marijuana, and drug paraphernalia.
       Bischoff was arrested and charged with possession of a controlled substance
(methamphetamine) and misdemeanor injury to a child. His motion to suppress was denied and
the district court ruled that Bischoff’s response, “okay,” to the officers’ third request to enter the
apartment constituted voluntary consent to the search. Bischoff entered a conditional guilty plea,
reserving the right to appeal the denial of his motion to suppress.
                                                 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
       Bischoff appeals the denial of his motion to suppress and argues that the district court
erred in finding that he voluntarily consented to the search of his residence. Bischoff first argues
that the district court’s finding that he consented to the search of his residence is not supported
by the record. In the alternative, Bischoff argues that even if he did consent to the search, such
consent was not voluntary due to the coercive nature of his interaction with law enforcement.



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         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.
         Although a warrantless entry or search of a residence is generally illegal and violative of
the Fourth Amendment, such an entry or search may be rendered reasonable by an individual’s
consent. State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131
Idaho 704, 707, 963 P.2d 387, 390 (Ct. App. 1998). In such instances, the State has the burden
of demonstrating consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747,
749, 947 P.2d 420, 422 (Ct. App. 1997). The State must show that consent was not the result of
duress or coercion, either direct or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248
(1973); State v. Whiteley, 124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993).                The
voluntariness of an individual’s consent is evaluated in light of all the circumstances. Whiteley,
124 Idaho at 264, 858 P.2d at 803. Consent to search may be in the form of words, gestures, or
conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991). Whether
consent was granted voluntarily, or was a product of coercion, is a question of fact to be
determined by all the surrounding circumstances. State v. Hansen, 138 Idaho 791, 796, 69 P.3d
1052, 1057 (2003).
         “Consent must be ‘unequivocal and specific’ and ‘freely and intelligently given’. There
must be convincing evidence that defendant has waived his rights. There must be clear and
positive testimony.” United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990) (quoting
United States v. Page, 302 F.2d 81, 83-84 (9th Cir. 1962). In the event that consent is inferred
from the facts and circumstances, the State’s burden of proving consent is the “heaviest.” State
v. Staatz, 132 Idaho 693, 695, 978 P.2d 881, 883 (Ct. App. 1999) (quoting Shaibu, 920 F.2d at
1426).
         In this case, the district court erred in finding that Bischoff consented to the search. The
district court’s decision rests on the determination that Bischoff’s response of “okay” to the
officer’s statement--“You going to let my partner go in and get that bong? I’m not going to have
a bong or pipe around with the three-year-old kid.”--constituted voluntarily given consent. The

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district court found that this statement could be reasonably interpreted by the officer to indicate
consent. However, the State’s burden of proving consent goes beyond the officer’s reasonable
interpretation of the situation. While the State may rely on a defendant’s words, gestures, or
conduct to prove that consent was given, it still must meet the burden of proving unequivocal
and specific consent. Here, the “okay” relied on the by district court is not unequivocal or
specific evidence of consent. Bischoff’s statement was given in response to both a question and
a statement by the officer, and there is no evidence in the record to clearly indicate whether
Bischoff was responding to the question about whether he was giving his permission for the
search, or whether he was simply acknowledging that he heard the question and statement, or
whether he was agreeing with the officer that a three-year-old child should not be in the same
apartment with controlled substances. There is no other evidence in the record to show that the
“okay” was accompanied by affirmative conduct to indicate that Bischoff was offering his
consent. In fact, the record shows that throughout the conversation between Bischoff and the
officers, Bischoff responded to several questions and statements with “okay” or other one word
responses. In the absence of additional supporting conduct, and given the nature of the question
and statement, we cannot conclude that “okay” amounts to unequivocal and specific consent.
        In addition, other circumstances in the record do not support the State’s argument and
the district court finding that the officer could reasonably interpret “okay” as consent.
Specifically, after the “okay” the officer again asked Bischoff whether he could search the
apartment and then prevented the second officer from entering the apartment until after he
received consent from Bischoff’s wife. Both of these additional facts indicate the officer did not
believe that consent was established by the “okay” because the officer undertook additional steps
in order to obtain consent before allowing his partner to enter the apartment to search for
controlled substances. The record does not support the district court’s finding that Bischoff gave
consent to the search of his apartment. The entry into and search of Bischoff’s residence was a
violation of the Fourth Amendment and all evidence derived from the entry must be suppressed.
       Because we have determined that Bischoff did not give consent for the search of his
residence and we reverse the district court’s decision, we will not address the arguments as to the
voluntariness of the consent.




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                                              IV.
                                        CONCLUSION
       We conclude that the district court erred in denying Bischoff’s motion to suppress
evidence because the State did not meet its burden to prove that Bischoff specifically and
unequivocally consented to allow the officers to enter his apartment to search for controlled
substances. Accordingly, the motion to suppress should have been granted and the evidence
excluded. We reverse the district court’s order denying the motion to suppress, vacate the
judgment of conviction, and remand the case for further proceedings consistent with this opinion.
Chief Judge MELANSON and Judge GRATTON CONCUR.




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