               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40259

DAVID B. MYERS,                                   )   2014 Unpublished Opinion No. 318
                                                  )
       Petitioner-Appellant,                      )   Filed: January 9, 2014
                                                  )
v.                                                )   Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )   THIS IS AN UNPUBLISHED
                                                  )   OPINION AND SHALL NOT
       Respondent.                                )   BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Susan E.Wiebe, District Judge.

       Judgment denying post-conviction relief, affirmed.

       David B. Myers, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       David B. Myers appeals from the district court’s judgment denying post-conviction relief
after an evidentiary hearing. Myers argues that the post-conviction court erred in two respects.
First, it failed to adequately consider certain evidence. Second, it erred by finding that Myers’
counsel was not ineffective for failing to file a timely suppression motion because that motion
would not have been granted by the trial court. We affirm.
                                               I.
                                       BACKGROUND
       On January 21, 2012, Officer Brockback was attempting to execute a felony arrest
warrant. He located the target’s car illegally parked next to a property on which a home and a
camper trailer were situated. While surveilling the target’s vehicle, Officer Brockback observed
another vehicle drive up to the property and then drive away. As part of this investigation,
Officer Brockback stopped that vehicle and asked the driver if she knew if the wanted person



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was in the trailer. A second officer, Sergeant Hoadley, arrived at the scene of the traffic stop to
assist Officer Brockback. The stopped driver did not know the wanted person, but explained that
she had dropped off two men at “Dave’s residence,” the trailer. Officers were also informed that
the two men had traveled from Payette to the trailer in Caldwell in order to exchange stolen
property for narcotics. Believing that either the two men from Payette or the target of the
warrant might be in the trailer, officers approached the trailer and knocked on the door.
       Myers answered the door. Officer Brockback informed Myers that there had been reports
of suspicious activity taking place at the trailer and asked if he could come into the trailer to
speak with Myers. Myers made a gesture indicating that the officer could come in and stepped
back to allow the officer in. The officer entered and observed that the trailer was small and
cramped with boxes stacked in such a way that the rear of the camper trailer was not visible from
the officer’s position. Officer Brockback was concerned for his safety because he believed that
the obscured areas of the trailer were large enough for a person to hide and because of his
suspicion that people engaged in criminal conduct were inside the trailer. Accordingly, Officer
Brockback asked Myers if he could search the trailer.           Myers refused and asserted his
constitutional right to be free from searches in his home. Myers did not ask the officers to leave
his home or otherwise indicate any desire to terminate the encounter.          Officer Brockback
honored Myers’ refusal but asked Myers if he had any identification; Myers offered Officer
Brockback his identification card and Officer Brockback stepped out of the trailer to run a
records check.
       When Officer Brockback stepped out of the trailer, Sergeant Hoadley stepped into the
trailer and spoke with Myers. Sergeant Hoadley acknowledged that Myers refused a search of
the premises, but asked if he could perform a quick sweep. Sergeant Hoadley explained why he
wished to perform a sweep and explained what the sweep would entail. Myers said, “Don’t scare
my cat,” and moved partially out of the officer’s way. Sergeant Hoadley explained that there
was not room to move by him and Myers moved further out of the way. Once Sergeant Hoadley
moved to the rear of the trailer, he observed a shotgun shell and a small caliber handgun.
Sergeant Hoadley confirmed that Myers had a prior felony conviction and was not permitted to
possess a firearm. On this basis, he directed Officer Brockback to arrest Myers.
       We summarized the remaining background of this case in the direct appeal, State v.
Myers, Docket No. 38161 (Ct. App. Sept. 8, 2011) (unpublished):


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                 Myers was charged with unlawful possession of a firearm. A public
        defender was appointed to represent him. After Myers pleaded not guilty on
        February 12, 2010, the case was assigned to District Judge Hoff. On March 2,
        Judge Hoff entered an order disqualifying herself, and the case was transferred to
        Judge Wiebe. Judge Wiebe granted a defense motion to enlarge time for pretrial
        motions, requiring all pretrial motions to be filed within fourteen days of defense
        counsel’s receipt of the preliminary hearing transcript, which had been previously
        requested. The transcript was filed and delivered on March 10, 2010, but support
        staff in the public defender’s office did not notify Myers’ counsel that it had
        arrived, and counsel did not independently check for the transcript. On April 19,
        2010, Myers’ counsel realized the case had been reassigned to Judge Wiebe upon
        checking the district court’s register of actions (which also shows the transcript
        was filed March 10, 2010). Pursuant to office protocol, the case was transferred
        to another attorney in the public defender’s office who was assigned to Judge
        Wiebe’s court. The transferring attorney suggested to the new attorney that he
        should file a suppression motion. The newly-assigned attorney scheduled a
        hearing for a motion to suppress and even discussed plans to file the motion
        during a pretrial conference on April 30, but waited until June 10 to file the
        motion. On the same date he also filed a motion to enlarge the time for filing
        pretrial motions. After holding hearing on the matter on June 25, 2010, the
        district court denied the motion to enlarge time. The court explicitly recognized
        that the decision was discretionary, but noted that it had already enlarged the time
        to file pretrial motions, effectively extending the time from twenty-eight days to
        forty days. The court indicated that its decision may have been different had the
        motion to enlarge time been brought soon after Myers’ counsel discovered that
        the transcript had been delivered, instead of waiting at least forty-one additional
        days to file the motion.

After the trial court denied the motion to enlarge time, Myers entered a conditional guilty plea
preserving his right to appeal the trial court’s ruling on that motion. In Myers’ direct appeal, we
held that the trial court did not abuse its discretion by denying Myers’ motion to enlarge the time
to file pretrial motions. Id.
        In this post-conviction action, Myers alleged that his defense counsel was ineffective
when he failed to file a suppression motion. The State and Myers stipulated that Myers’
counsel’s performance was deficient because he failed to file a timely motion. However, the
State did not stipulate to prejudice. Accordingly, the post-conviction court held an evidentiary
hearing solely on the question of whether the motion would have been granted by the trial court
if Myers’ counsel had timely filed it. The post-conviction court held that the trial court would
not have granted the motion. It held that Sergeant Hoadley was permitted to enter the trailer and
perform a protective sweep under the consent exception to the warrant requirement. During that



                                                 3
sweep, Sergeant Hoadley saw the firearm in plain view. Because the post-conviction court
concluded that Sergeant Hoadley’s actions did not violate Myers’ Fourth Amendment rights, it
held that the motion would have been denied.
                                                II.
                                           ANALYSIS
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-
30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner must
show that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). Where, as
here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the
claimant must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho
758, 762, 152 P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to the proposition
that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless
those decisions are based on inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d
261, 263 (Ct. App. 1994).
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief
after an evidentiary hearing, an appellate court will not disturb the lower court’s factual findings
unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d
654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their
testimony, and the inferences to be drawn from the evidence are all matters solely within the
province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.
1988). We exercise free review of the district court’s application of the relevant law to the facts.
Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).


                                                 4
       In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district court may consider the probability of success of the
motion in determining whether the attorney’s inactivity constituted incompetent performance.
Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996). Where the alleged
deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued, would
not have been granted by the trial court, is generally determinative of both prongs of the
Strickland test. Boman, 129 Idaho at 526, 927 P.2d at 916.
       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).
       The trial court is the proper forum for the careful sifting of the unique facts and
circumstances of each case necessary in determining voluntariness. Schneckloth, 412 U.S. at
233. Even though the evidence may be equivocal and somewhat in dispute, if the trial court’s
finding of fact is based on reasonable inferences that may be drawn from the record, it will not
be disturbed on appeal. State v. Jaborra, 143 Idaho 94, 97, 137 P.3d 481, 484 (Ct. App. 2006).
In short, whether consent to a search was voluntary is a question of fact, and our standard of
review requires that we accept a trial court’s factual findings unless they are clearly erroneous.
Hansen, 138 Idaho at 795, 69 P.3d at 1056; State v. McCall, 135 Idaho 885, 886, 26 P.3d 1222,
1223 (2001). Findings will not be deemed clearly erroneous if they are supported by substantial
evidence in the record. State v. Benson, 133 Idaho 152, 155, 983 P.2d 225, 228 (Ct. App. 1999).


                                                5
       Myers argues that the trial court did not hear his refusal to consent to a search of his
trailer because it did not listen to the entire audio recording. On this basis, he argues the post-
conviction court failed to adequately consider the evidence he adduced at the hearing. We
construe this argument as an argument that the post-conviction court’s findings of fact are clearly
erroneous. This argument is unpersuasive. In reviewing the entire recording, we observe that
Myers’ statements are frequently unintelligible because of the placement of the microphone and
road noise. Of the intelligible statements, Myers can be heard refusing to consent to a search
only once, in response to Officer Brockback’s request to search the trailer. This refusal is
included in the post-conviction court’s recitation of facts. Therefore, we conclude that the post-
conviction court’s finding in that regard is not clearly erroneous.         Furthermore, the audio
recording was stopped after Myers’ post-conviction counsel requested that it be stopped. Thus,
the district court’s omission to listen to the balance of the recording, if error, was invited error
which will not serve as a basis for appellate relief. See State v. Pentico, 151 Idaho 906, 915, 265
P.3d 519, 528 (Ct. App. 2011).
       Myers also argues that his consent was insufficient to act as an exception to the warrant
requirement of the Fourth Amendment. First, he argues that he did not consent to the officers
entering his trailer. Second, he argues that the officers were required to leave after he first
denied their request to search the trailer. Third, he generally argues that his consent was not
unequivocal, specific, freely given, or intelligent. 1 We construe his final argument as a claim
that his consent was not, under the totality of circumstances, voluntary.
       The post-conviction court found that Myers did consent to the officers entering his home.
This ruling was based upon its finding that the officers were credible and Myers was not
credible. As stated above, we will not reweigh credibility on appeal. Larkin, 115 Idaho at 73,
764 P.2d at 440. Officer Brockback testified that he asked Myers if he could come into the
camper and Myers “made a gesture” and “stepped back allowing [Brockback] into the camper.”
At the hearing, the officer described the gesture as a “gesture of acquiescence.” As stated above,
“consent to search may be in the form of words, gestures, or conduct.” State v. Mangum, 153



1
       Myers also argues that the officers were not permitted to search his home under any other
warrant requirement. We need not reach this issue as we conclude that Myers consented to the
sweep.


                                                 6
Idaho 705, 714, 291 P.3d 44, 53 (Ct. App. 2012). However, we have previously found that “a
slight gesture such as a shrug of the shoulders or a minimal affirmative gesture, may indicate
mere acquiescence rather than consent.” Jaborra, 143 Idaho at 98, 137 P.3d at 485; see State v.
Zapp, 108 Idaho 723, 726, 701 P.2d 671, 674 (Ct. App. 1985). Acquiescence, unlike consent, is
not an exception to the warrant requirement. Nonetheless, we conclude that the trial court did
not err by holding that Myers consented to the officers entering his trailer and we distinguish
Jaborra and Zapp. 2
       The majority of the acquiescence cases involve coercive environments.               See, e.g.,
Jaborra, 143 Idaho at 98, 137 P.3d at 485 (“consent was not voluntary but was the product of
coercive circumstances”); Zapp, 108 Idaho at 726, 701 P.2d at 674 (“Zapp was being detained.
The atmosphere was coercive.”); State v. Huskey, 106 Idaho 91, 94, 675 P.2d 351, 354 (Ct. App.
1984) (applying a rule from Bumper v. North Carolina, 391 U.S. 543 (1968), which held that
acquiescence to an officer’s claim of authority does not amount to consent). The record in this
case does not indicate that there was a coercive environment. 3 Moreover, Myers’ nonverbal
response consisted of more than an ambiguous gesture; Myers also stepped back to allow the
officer into the trailer. These two nonverbal responses, taken together, and in response to a
request to be allowed inside, unambiguously indicate consent.
       Myers’ second claim--that the officers were required to leave his property when he
refused to permit them to search his entire trailer--is also meritless. The officers were still acting
within the scope of a prior, unrevoked consent to enter. Nothing in Myers’ words or actions
indicated that he wished to revoke his consent or requested that they leave.
       Finally, Myers argues that his consent to a sweep of his trailer was not unequivocal,
specific, freely given, or intelligent. We construe this argument as a claim that, under the totality



2
        In the briefing below, Myers’ counsel conceded that Myers gave the officers permission
to enter the house. In the interest of judicial efficiency, we review this issue on the merits and, as
stated above, conclude that the post-conviction court did not err in finding that Myers consented
to the officers entering the trailer.
3
        Myers testified that Hoadley threatened him by drawing a firearm, and at various times,
pointing a firearm at him. The post-conviction court did not find Myers credible as to this
assertion and found that the officers did not draw a firearm or point one at Myers. The post-
conviction court’s finding of fact was not clearly erroneous. Accordingly, we do not consider
any coercion that might have resulted from the alleged brandishing of a firearm.

                                                  7
of circumstances, his consent was not voluntary. As stated above, the post-conviction court’s
determination that Myers consented is a finding of fact that will not be overturned on appeal
unless it is clearly erroneous.
       Below, Myers indicated several factors tending to show that his consent was not
voluntary. First, he argued that the officers repeatedly asked him similar questions. Repeated
questioning can be overbearing and indicate coercion. Schneckloth, 412 U.S. at 226; State v.
Brown, 155 Idaho 423, 430, 313 P.3d 751, 758 (Ct. App. 2013). However, in this case, the
officers did not engage in the type of repeated questioning that tends to overbear a defendant’s
will. The entire conversation was short. From Officer Brockback’s first request to search the
trailer until Sergeant Hoadley began the sweep, just three minutes elapsed. The officers accepted
Myers’ refusal to permit a search when Myers explained that he wanted to assert his rights under
the Fourth Amendment. Thereafter, in response to Myers’ refusal, officers and Myers had a brief
conversation in which the officers outlined their concerns, giving specific examples: the officers
explained that they had received reports that two men had previously been on the property, that
they were wary another person might be in the trailer, and that their view of the rear of the trailer
was obscured.      Additionally, officers explained the differences between the search they
understood Myers refused to consent to and the sweep they wished to perform. Here, the officers
were not repeating questions to overbear Myers’ will, they were asking if he would consent to an
alternative procedure and explaining why they would like him to do so.
       Myers also argued that his ability to refuse to consent to the sweep was limited because
he had given Officer Brockback his identification card. We have previously held that an officer
retaining an individual’s identification may indicate coercion. State v. Garcia, 143 Idaho 774,
778, 152 P.3d 645, 649 (Ct. App. 2006); see also United States v. Chemaly, 741 F.2d 1346, 1353
(11th Cir. 1984). In this case, this factor is not particularly indicative of coercion. In many
cases, the retention of identification is of particular import because it occurs in the context of
travel and prevents the individual from leaving. See, e.g., Chemaly, 741 F.2d at 1353 (the
officers possessed the defendant’s ticket and passport while he was at the airport attempting to
travel). In such a context, the retention of identification is indicative of the officer’s intention to
seize a person. See id. at 1352 (“the presence of express or implied coercion, is similar to factors
involved in determining whether a seizure has occurred under the fourth amendment . . .
retention of documents such as a driver’s license and an airline ticket has been treated as highly


                                                  8
significant on the question of whether a seizure has occurred.”). Here, the actions of the officers
did not tend to indicate any intention to detain Myers. The officers did nothing to indicate they
would refuse to return his identification. Their series of requests for consent, and honoring
Myers’ initial refusal of an interior search, made it clear that the officers were honoring his
wishes and had not converted the encounter into a seizure or investigative detention.
       Myers also argued that any consent he gave was ambiguous and that the ambiguity
indicates that his consent was not voluntarily given.        Myers never gave the officers an
unambiguous verbal consent. Instead, in response to Sergeant Hoadley’s request to perform a
sweep, Myers said, “Don’t scare my cat please,” and then began to move aside to permit
Sergeant Hoadley to perform the sweep. Then, when the officer stated that he did not think there
was room for him to pass by Myers, Myers moved out of the way and Sergeant Hoadley
responded, “I appreciate it.” While an unambiguous verbal consent may be preferable, a person
may consent “in the form of words, gestures, or conduct.” Mangum, 153 Idaho at 714, 291 P.3d
at 53. Here, the response, “Don’t scare my cat,” indicated that Myers expected a change in the
status quo; i.e., he expected Sergeant Hoadley to do something that might scare his cat.
Accordingly, the statement, “Don’t scare my cat,” indicates that Myers was consenting to the
search. This statement, together with Myers’ physical movement permitting the officer to move
past him, sufficiently conveyed Myers’ consent.
       While Myers has highlighted factors that might tend to show he was coerced, he ignored
many of the facts that show that his consent was voluntarily given. Myers knew his rights. He
had previously asserted those rights by, more or less accurately, stating the warrant requirement
to search a home. When Myers asserted his rights, the officers honored his refusal to consent to
the search.   Moreover, the tone of the request to perform a sweep of the trailer was not
demanding or overbearing. Instead, Sergeant Hoadley consistently emphasized that he was
asking permission and not ordering Myers to comply. Sergeant Hoadley asked if Myers would
“mind” if he performed a safety sweep. Then, when Myers asked why the officer “needed” to
perform the sweep, the officer made clear that he was “asking” permission to perform the sweep.
Finally, the exchange took place during the day and at Myers’ home; these factors reduce the risk
of coercion. See State v. Moran-Soto, 150 Idaho 175, 181, 244 P.3d 1261, 1267 (Ct. App. 2010).
       For all of these reasons, we conclude that the post-conviction court’s finding that Myers
consented to the sweep of the trailer was not clearly erroneous. On this basis, the trial court


                                                  9
correctly determined that Myers was not prejudiced by his attorney’s failure to file a suppression
motion and denied post-conviction relief.     Therefore, the judgment of the district court is
affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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