               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42636

STATE OF IDAHO,                                ) 2015 Opinion No. 70
                                               )
       Plaintiff-Respondent,                   ) Filed: October 30, 2015
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
WAYNE RAY FLOYD,                               )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Molly J. Huskey, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Wayne Ray Floyd appeals from his judgment of conviction for possession of a controlled
substance. Floyd contends that the district court erred by denying his motion to suppress
evidence found in his home, arguing that his consent allowing police to enter his home was the
product of coercion. For the reasons set forth below, we affirm.
       Floyd and a companion were walking down a street near Floyd’s home when they were
contacted by police. During the ensuing discussion, the officer observed that Floyd and his
companion were under the influence of marijuana. Both men admitted to smoking marijuana at
Floyd’s home. The officer promised that he would not arrest them if they would go to Floyd’s
home and get the drug paraphernalia. Floyd agreed. Upon reaching Floyd’s home, Floyd and
three officers entered the home and proceeded to Floyd’s bedroom where he consented to a



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search of the room.     The search resulted in the discovery of methamphetamine and drug
paraphernalia. Floyd was charged with possession of a controlled substance and manufacturing
with intent to deliver paraphernalia. Floyd filed a motion to suppress the evidence, arguing that
his consent to the police entry into his home was not voluntarily given. After a hearing, the
district court denied Floyd’s motion. Floyd pled guilty to one count of possession of a controlled
substance, I.C. § 37-2732(c)(1), and preserved his right to challenge the denial of his suppression
motion on appeal. The district court sentenced Floyd to a unified term of four years, with a
minimum term of confinement of one year. The district court suspended execution of Floyd’s
sentence and placed him on probation for three years. Floyd appeals.
       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).
       On appeal, Floyd contends that the district court erred in denying his motion to suppress
the evidence found in his bedroom. He argues that the police entry into his home was not
exempted from the Fourth Amendment’s warrant requirement under the consent exception
because his consent was a product of coercion. Under a Fourth Amendment analysis, the
question of 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). In this case, the district court found that Floyd consented to
allowing police entry into his home and consented to a search. However, despite hearing
argument on the issue, the district court did not make findings of fact relating to whether Floyd’s
consent was voluntary. This Court has previously stated that the trial court is the proper forum
for the careful sifting of the unique facts and circumstances of each case necessary in
determining voluntariness. State v. Garcia, 143 Idaho 774, 778, 152 P.3d 645, 649 (Ct. App.
2006) (upholding a district court’s finding of fact that consent was voluntary based on numerous


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factors, including an officer’s threat to arrest the defendant if he was not willing to hand over any
marijuana he and a companion possessed).
       Without findings of fact regarding Floyd’s claim of coercion, this Court is somewhat
hampered in its assessment of Floyd’s appeal. See, e.g., State v. Morris, 101 Idaho 120, 124, 609
P.2d 652, 656 (1980). However, in State v. Kirkwood, 111 Idaho 623, 726 P.2d 735 (1986), our
Supreme Court reversed this Court’s decision remanding a case to the trial court for findings of
fact on a suppression motion.       Where neither party has requested written findings under
I.C.R. 12,1 we should examine the record to determine implicit findings which would support the
trial court’s order and such implicit findings should be overturned only if not supported by
substantial evidence. See id. at 625, 726 P.2d at 737. All presumptions favor the trial court’s
exercise of the power to weigh the evidence and draw factual inferences. Id. Accordingly, we
are required to examine the record to determine whether there was substantial evidence to
support the district court’s implicit finding that Floyd’s consent was voluntary. In conducting
this review, we bear in mind that it is the responsibility of the appellant to provide a sufficient
record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702
P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the
appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d
1009, 1011 (Ct. App. 1991).
       The evidence shows that an officer approached Floyd and his companion at night walking
down a street that was not well lit. The officer activated the lights on the rear of his unmarked
car, approached, and spoke to the two pedestrians. Another officer arrived thirty to forty seconds
later as a cover officer but did not closely approach Floyd or speak to him. Both officers were in
uniform and their weapons were visible but remained holstered. The officer questioned Floyd
and determined that Floyd and his companion had been smoking marijuana at Floyd’s home
nearby. The officer told Floyd that the officer would not arrest Floyd for being an intoxicated
pedestrian if he would accompany the officers to Floyd’s residence to get his paraphernalia and

1
        Former I.C.R. 12(d) permitted the parties to request written findings. Since Kirkwood,
I.C.R. 12 was amended to require the trial court to state its essential findings on the record where
factual issues are involved in determining a motion whether or not findings are requested by a
party. See I.C.R. 12(f). We do not perceive that this amendment abrogated the Kirkwood
holding.

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that the officers would dispose of the paraphernalia. Floyd agreed and walked to his residence
with the officers following behind in their cars. They entered Floyd’s residence and Floyd told
the officers where to find his paraphernalia. Floyd then consented to a search of his bedroom
and the officers found methamphetamine.
       There is no evidence in the record to suggest that the officers were confrontational at any
point during the encounter or that Floyd was uncooperative. Floyd asserts that he was overcome
by the officers’ coercion when he allowed them to enter his home, but the record does not
support that assertion. Floyd argues that this case is similar to State v. Rector, 144 Idaho 643,
167 P.3d 780 (Ct. App. 2006). In that case, Rector was walking alone in a dark alley away from
an apartment where drug activity was suspected. She was approached by two officers in plain
clothes with visible firearms. In response to the officer’s questions, she asked if they had a
warrant. She was subjected to a frisk for weapons after she kept putting her hand in her pants
pocket after being asked not to do so. When she was granted permission to smoke, she took a
cigarette from her pocket and one of the officers asked what else was in her pocket. She
responded that she had candy and “miscellaneous stuff.” The officer asked to see the pocket’s
contents and she complied revealing some methamphetamine. The trial court granted a motion
to suppress and we affirmed. In affirming, we noted, as we do here, that the “trial court is the
proper forum for the ‘careful sifting of the unique facts and circumstances of each case necessary
in determining voluntariness.’” Rector, 144 Idaho at 645, 167 P.3d at 782 (quoting Schneckloth
v. Bustamonte, 412 U.S. 218, 233 (1973)). We also cited to our familiar standard of review in
cases of this kind requiring us to accept a trial court’s findings unless they are clearly erroneous.
There are some similarities between this case and Rector, but we are obligated to accept the
district court’s findings of fact unless they are clearly erroneous. Based upon the evidence in the
record, we cannot say that the district court’s implicit findings are clearly erroneous.
       Floyd also argues that the officer’s promise not to arrest Floyd undermined his ability to
refuse to cooperate. In Garcia, 143 Idaho 774, 152 P.3d 645, we addressed a similar argument.
There, the defendant was observed smoking marijuana in a campground with a group of other
men. The officers approached and told the group that if they handed over their marijuana they
would be cited, but if they did not they would be arrested. Garcia did not have any marijuana on
his person but did admit to having brought a marijuana cigarette to the location and smoking it.


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Garcia then consented to a search of his vehicle, which officers had observed him drive to the
scene. A large amount of marijuana was found in the vehicle. Garcia filed a motion to suppress,
arguing that his consent was coerced because he was faced with two unpleasant choices--consent
to a search or risk of arrest. We held that an officer’s implied or explicit offer not to arrest a
suspect if he “turns over what he has” is not ipso facto coercive if it merely informs the suspect
of the officer’s intention to do something that is within the officer’s authority based on the
circumstances. Id. at 779-80, 152 P.3d at 650-51. To be sure, an officer’s offer not to arrest is
one factor that can be considered in determining whether a consent is voluntary but here, as in
Garcia, other evidence does not point to coercion.
       There is substantial evidence to support the district court’s implicit finding that Floyd’s
consent to search was voluntary, and the district court did not err in denying Floyd’s motion to
suppress. Therefore, Floyd’s judgment of conviction for possession of a controlled substance is
affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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