               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42390

STATE OF IDAHO,                                ) 2016 Opinion No. 52
                                               )
       Plaintiff-Respondent,                   ) Filed: August 4, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
TRICIA FRANKLIN,                               )
                                               )
       Defendant-Appellant.                    )
                                               )

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

       Order denying motion to suppress, reversed and case remanded.

       Eric D. Fredericksen, Interim State Appellate Public Defender, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Tricia Franklin appeals from the district court’s order denying her motion to suppress.
We reverse the order and remand the case for further proceedings.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Officer Tatilian encountered Franklin walking across a street toward a saloon. She
appeared intoxicated and smelled of alcohol. Later that day, Officer Tatilian responded to a
report of an intoxicated driver operating a 1990s Ford pickup and driving away from the saloon
where the officer had contacted Franklin. Officer Tatilian located the pickup parked at a local
motel and found Franklin and her boyfriend, Jason Snowball, in one of the motel’s rooms.
Franklin and Snowball both admitted they were intoxicated and Officer Tatilian warned them not
to drive while they were intoxicated.


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        At approximately 10:12 p.m., dispatch asked Officer Tatilian to respond to a single-
vehicle accident involving a 1990s Ford pickup. When Officer Tatilian arrived at the scene of
the accident at 10:47 p.m., the fire chief was already there. The fire chief informed Officer
Tatilian that Franklin was injured in the accident and taken to the hospital. The fire chief also
told Officer Tatilian that Franklin appeared intoxicated, smelled of alcohol, and said she was the
vehicle’s driver and only occupant.
        Officer Tatilian located Snowball’s wallet at the scene. Thinking Snowball may have
been involved in the accident, Officer Tatilian searched for other victims but did not find any
other victims at the scene. Officer Tatilian had radios in his vehicle and on his person that were
working while at the scene of the accident. The officer left at approximately 11:55 p.m. and
went back to the motel where he confirmed Snowball was not involved in the accident. The
district court found that around midnight, Officer Tatilian asked dispatch to send a phlebotomist
and another officer to draw Franklin’s blood at the hospital.
        A phlebotomist and Officer Rogers were sent to the hospital to obtain Franklin’s blood.
Franklin arrived at the hospital at 12:20 a.m., shortly after Officer Rogers. At the hospital,
Franklin physically refused a blood draw for law enforcement purposes. However, the hospital
nurse was drawing Franklin’s blood for treatment purposes. Through the phlebotomist, Officer
Rogers had the hospital nurse fill two tubes with Franklin’s blood. The nurse completed the
blood draw at 12:40 a.m. The test of Franklin’s blood revealed a blood alcohol content (BAC) of
.236.
        The State charged Franklin with felony driving under the influence (DUI), Idaho Code
§§ 18-8004 and 18-8005(6), and misdemeanor driving without privileges, I.C. § 18-8001(4).
Franklin moved to suppress evidence of the results of the blood test. The district court denied
the motion, holding implied consent and exigent circumstances justified the warrantless blood
draw. Franklin entered a conditional guilty plea, reserving the right to appeal the denial of her
motion to suppress, and the State dismissed the driving without privileges charge. Franklin
timely appeals from the denial of her motion to suppress.
                                                II.
                                           ANALYSIS
        Franklin argues the district court erred in denying her motion to suppress. The standard
of review of a suppression motion is bifurcated. When a decision on a motion to suppress is

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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).
         Franklin raises three issues on appeal. First, she argues she withdrew her consent under
current Idaho law. Accordingly, she asserts she did not impliedly consent to the warrantless
blood draw.     The State concedes that Franklin withdrew her consent under “recent Idaho
Supreme Court decisions” and the implied consent exception is “inapplicable under the facts of
this case.” Therefore, we need not address this issue. Second, Franklin argues the district
court’s factual finding that Officer Tatilian requested the blood draw around midnight was
clearly erroneous.    Finally, she asserts exigent circumstances did not exist to justify the
warrantless blood draw.
A.       Factual Finding
         Franklin asserts the district court’s factual finding that Officer Tatilian requested the
blood draw around midnight was clearly erroneous. On appeal, this Court defers to the trial
court’s findings of fact unless they were clearly erroneous. State v. Shafer, 144 Idaho 370, 374,
161 P.3d 689, 693 (Ct. App. 2007). Findings are clearly erroneous when they are not supported
by substantial evidence. Id. Evidence is substantial if a reasonable trier of fact would accept that
evidence and rely on it to determine whether a disputed point of fact was proven. State v.
Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 (2009); State v. Mitchell, 130 Idaho 134, 135,
937 P.2d 960, 961 (Ct. App. 1997).         Substantial evidence may exist even when there is
conflicting evidence. Severson, 147 Idaho at 712, 215 P.3d at 432. 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).




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       Franklin argues the district court’s finding that Officer Tatilian requested the blood draw
around midnight contradicts the phlebotomist’s and Officer Tatilian’s1 testimony that the request
occurred around 11:17 p.m.      In finding Officer Tatilian requested the blood draw around
midnight, the district court resolved a factual conflict between the testimony of the phlebotomist
and Officer Tatilian’s and Officer Rogers’ testimony. Officer Rogers testified that Officer
Tatilian requested the blood draw around midnight. In its order denying Franklin’s motion to
suppress, the court stated:   “There is some inconsistency in the evidence about when Tatilian
requested a blood draw. The Court finds that Rogers[’] account is credible.”
       Substantial evidence supported the district court’s finding that Officer Tatilian requested
the blood draw around midnight. The district court based this finding on Officer Rogers’
testimony, which the court found credible. A reasonable trier of fact could accept and rely on
Officer Rogers’ testimony in determining when Officer Tatilian requested the blood draw. Thus,
substantial evidence supported the district court’s finding that Officer Tatilian requested the
blood draw around midnight. The district court acted within its power by resolving this factual
conflict and finding Officer Rogers’ testimony credible.
B.     Exigent Circumstances
       Franklin next asserts, based on the totality of circumstances, exigent circumstances did
not exist to justify the warrantless blood draw.2 The United States and Idaho Constitutions




1
        Franklin asserts Officer Tatilian adopted 11:17 p.m. as the time he requested the blood
draw. In response to the prosecutor’s question about what time he requested the blood draw,
Officer Tatilian stated: “I don’t recall a specific time off the top of my head, no.” The
prosecutor then asked, “If the dispatch log indicates 11:17, would that be accurate?” Officer
Tatilian responded, “It would be within a minute or two of me calling, yes.”
2
       In response to this argument, the State argues there was no search within the meaning of
the Fourth Amendment. According to the State, only a government agent’s action can constitute
a search under the Fourth Amendment. Thus, the State asserts there was no search within the
meaning of the Fourth Amendment because the hospital nurse that drew Franklin’s blood was
not a government agent. We are not convinced by this argument. The hospital nurse and
phlebotomist were clearly acting under the direction of Officer Rogers in performing the
warrantless blood draw. Moreover, the State effectively conceded there was a warrantless search
under the Fourth Amendment in the court below by agreeing that the State had the burden to
show the search fell within a valid exception to the warrant requirement.


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prohibit unreasonable searches and seizures of persons or property.3 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); State v. Smith, 152 Idaho 115, 118, 266
P.3d 1220, 1223 (Ct. App. 2011). Requiring a person to submit to a blood draw for evidentiary
testing is a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S.
757, 767 (1966). Therefore, warrantless forced blood draws are presumptively unreasonable
under the Fourth Amendment. Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558
(2013); State v. Wulff, 157 Idaho 416, 419, 337 P.3d 575, 578 (2014). The State may overcome
this presumption by demonstrating that a warrantless search fell within a well-recognized
exception to the warrant requirement. Weaver, 127 Idaho at 290, 900 P.2d at 198; Smith, 152
Idaho at 118, 266 P.3d at 1223.
       One of the well-recognized warrant requirement exceptions involves exigency.              A
warrant is not required if “‘the exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (quoting McDonald v. United
States, 335 U.S. 451, 456 (1948)). Whether an exigency exists is based on the totality of
circumstances, which is analyzed case-by-case. McNeely, ___ U.S. at ___, 133 S. Ct. at
1556; Wulff, 157 Idaho at 420, 337 P.3d at 579.        A warrantless search under the exigent
circumstance exception must be strictly circumscribed by the nature of the exigency that justifies
the intrusion. State v. Buterbaugh, 138 Idaho 96, 99, 57 P.3d 807, 810 (Ct. App. 2002). The
exigent circumstance exception does not apply where there is time to secure a warrant. State v.
Robinson, 144 Idaho 496, 501, 163 P.3d 1208, 1213 (Ct. App. 2007).
       For instance, an officer is justified in performing a warrantless blood draw when he
“might reasonably have believed that he was confronted with an emergency, in which the delay
necessary to obtain a warrant, under the circumstances, threatened the destruction of
evidence.” Schmerber, 384 U.S. at 770 (quotation marks and citations omitted). The destruction
of evidence in Schmerber was the natural dissipation of the defendant’s BAC because the
defendant was suspected of drunk driving. Id. at 770-71. The Supreme Court implied, however,
that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every

3
       Franklin does not argue the Idaho Constitution affords greater protection, so this Court
follows the analysis pursuant to the Fourth Amendment to the United States Constitution.
                                                5
case. Id. at 770. The Court based its ruling on other factors relevant to the delay in securing a
warrant in that case, such as the need to investigate the scene of a car accident and transport the
defendant to a hospital for injuries suffered in the accident. Id.
        Recently, the Supreme Court explicitly held that the natural dissipation of alcohol in the
bloodstream does not categorically support a finding of exigent circumstances. McNeely, ___
U.S. at ___, 133 S. Ct. at 1563. Rather, the natural dissipation of alcohol in the bloodstream is
one factor in the totality of circumstances that may support a finding of exigency in a specific
case. Id. In McNeely, the defendant was involved in a routine DUI case and refused to submit to
a breath test. Id. at ___-___, 133 S. Ct. at 1553-54. The officer did not attempt to secure a
warrant before directing a lab technician to draw the defendant’s blood. Id. at ___, 133 S. Ct. at
1554.    The Court determined that the natural dissipation of alcohol in the defendant’s
bloodstream alone did not create an exigency. Id. at ___, 133 S. Ct. at 1561. However, the
Court noted that the natural dissipation of alcohol in the bloodstream, combined with other
factors, may delay law enforcement’s ability to secure a warrant.             Consequently, delays
associated with “the need for the police to attend to a car accident[,] . . . the procedures in place
for obtaining a warrant[,] or the availability of a magistrate judge,” may establish an
exigency. Id. at ___, 133 S. Ct. at 1568.         Moreover, the Court stated that technological
developments since Schmerber “that enable police officers to secure warrants more quickly . . .
are relevant to an assessment of exigency” and there would be no exigency where the availability
of other emergency personnel to attend to the demands of an investigation and respond to an
accident enables an officer to seek a warrant. Id. at ___-___, 133 S. Ct. at 1561-63. Ultimately,
the McNeely Court held that “in those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at
___, 133 S. Ct. at 1561.
        In this case, the State argued in the district court that the delay attendant to obtaining an
after-hours search warrant in Boise County created an exigent circumstance. The district court
rejected this argument, stating:
        [T]he State has not presented facts that would have demonstrated that the effort
        [to obtain a warrant] would have resulted in a sufficient delay as to adversely
        affect the test results. There is a full-time magistrate in Boise County. The
        County has an elected prosecuting attorney who is a resident of the county. The

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       Sheriff’s office certainly knows where the magistrate and prosecutor reside, and
       know how to contact each in the event of an emergency. Deputies in the field can
       contact dispatch and other officers by radio. The magistrate can be contacted
       personally, or by phone, either by the officer, or through assistance of dispatch.
       The Sheriff’s office was also aware that there is always an on call prosecutor and
       magistrate in Ada County for after hours warrant applications. The State has
       failed to demonstrate that efforts to obtain a search warrant would have resulted in
       delays that could have adversely affected the investigation.
However, the court found that the delay attendant to Officer Tatilian’s investigation, coupled
with any further delay in obtaining a warrant, created an exigent circumstance. The court stated:
       [C]onsidering all the circumstances, the Court does conclude that there are
       exigent circumstances excusing a warrant in this case. The accident was reported
       just prior to 10:12 p.m. The officer did not complete his investigation and
       conclude that Franklin was the driver until about midnight, almost two (2) hours
       after the accident. Because of this, the Court concludes that the additional time it
       would have taken to obtain a warrant would likely have resulted in such a delay as
       to potentially deprive the state of important evidence of alcohol concentration.
       The Court will find that the delay occasioned by the time necessary to conclude
       the investigation and determine that Franklin was the driver constitutes exigent
       circumstances. The process to obtain a warrant could not have begun until about
       midnight. The further delay in obtaining a warrant meant that there would have
       been a total delay of at least two (2) or three (3) hours. Such a delay would have
       permitted further elimination of alcohol that could have materially affected the
       State’s ability to prove an alcohol concentration above the legal limit.
       Similar to the Schmerber Court, the district court put considerable emphasis on delay
caused by the investigation of the accident. However, in doing so, the court discounted the
ultimate consideration in both Schmerber and McNeely: the delay necessary to obtain a warrant.
       In Schmerber, the Supreme Court held that the State must prove that “the delay necessary
to obtain a warrant, under the circumstances, threatened the destruction of evidence.”
Schmerber, 384 U.S. at 770 (quotation marks and citations omitted). Because “time had to be
taken to bring the accused to a hospital and to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant” in that case. Id. at 770-771. Thus, the
demands of that particular investigation made it impractical for police to obtain a warrant and
therefore, created an exigency. See id.
       In McNeely, the Court elaborated on the Schmerber holding and brought it into a modern
context. The Court held that the existence of an exigency in a drunk-driving investigation turns
on whether the “facts and circumstances of the particular case” made “obtaining a warrant
impractical.” McNeely, ___ U.S. at ___-___, 133 S. Ct. at 1560-61. Throughout the opinion, the

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Court discussed factors that “may affect whether the police can obtain a warrant in an
expeditious way and therefore may establish an exigency that permits a warrantless search.” Id.
at ___, 133 S. Ct. at 1568. These factors include:
       1.   The availability of a magistrate;
       2.   The need for police to attend to and investigate a car accident;
       3.   The availability of other emergency personnel;
       4.   Technology that enables police to secure warrants quickly; and
       5.   The procedures for obtaining a warrant.
Id. at ___-___, 133 S. Ct. at 1560-69. Thus, the investigation of an accident is just one factor in
the totality of circumstances that may delay law enforcement’s ability to timely obtain a warrant
and therefore, threaten the destruction of evidence and create an exigency. See id. at ___, 133 S.
Ct. at 1560. Accordingly, the investigation of an accident does not necessarily cause undue
delay in obtaining a warrant, and is not without consideration of the totality of the circumstances
enough to threaten the destruction of evidence and create an exigency. See McNeely, ___ U.S. at
___, 133 S. Ct. at 1560.
       In this case, Officer Tatilian’s investigation of the accident did not delay law
enforcement’s ability to timely obtain a warrant and therefore, did not threaten the destruction of
evidence and create an exigency. Although the district court found that “the process to obtain a
warrant could not have begun until about midnight” because of Officer Tatilian’s investigation,
there is no evidence Officer Tatilian’s investigation prevented him from seeking a warrant
between 10:47 p.m.--when he arrived at the scene--and midnight when he concluded his
investigation and sought the blood draw.4 Emergency personnel were transporting Franklin to
the hospital and Officer Tatilian could have called on other emergency personnel at the scene to
assist him in his investigation while he sought a warrant. Further, Officer Tatilian had the
technological ability to request a warrant while he was at the scene of the accident. The officer
testified that he had radios in his vehicle and on his person that were working while at the scene
of the accident. Finally, an objective assessment of the facts shows soon after arriving at the
4
        We note that although we upheld the district court’s factual finding that Officer Tatilian
requested the blood draw around midnight, that finding is irrelevant to whether exigent
circumstances existed to justify the warrantless blood draw.
        However, the district court’s factual finding that “the process to obtain a warrant could
not have begun until about midnight” is relevant to whether exigent circumstances existed to
justify the warrantless blood draw and was not supported by substantial evidence in the record.
Accordingly, we hold the district court’s factual finding that “the process to obtain a warrant
could not have begun until about midnight” was clearly erroneous.
                                                 8
scene and speaking with the fire chief, Officer Tatilian developed probable cause that Franklin
was intoxicated and driving the pickup.     The fire chief informed the officer that Franklin
appeared intoxicated, smelled of alcohol, and said she was the vehicle’s driver and only
occupant. His further investigation was not necessary to obtain a warrant based on probable
cause that Franklin was the pickup’s driver. The officer simply did not seek a warrant because
he did not think he needed one.
       While Officer Tatilian’s investigation of the accident did not, by itself, delay law
enforcement’s ability to timely obtain a warrant, our inquiry does not end there. We must
consider whether, in the totality of circumstances, any delay necessary to obtain a warrant
threatened the destruction of evidence, causing an exigency. See McNeely at ___-___, 133 S. Ct.
at 1559-60; Schmerber, 384 U.S. at 770. No other factors in this case delayed law enforcement’s
ability to timely obtain a warrant, thus threatening the destruction of evidence and creating an
exigency. The district court found that the procedures for obtaining a warrant would not have
caused significant delay in obtaining a warrant. According to the court, officers in Boise County
knew how to contact the county’s prosecutor and full-time magistrate and Ada County’s on-call
prosecutor and magistrate for after-hours warrant applications and could do so through dispatch.
Moreover, there is no evidence that anything prevented Officer Tatilian or Officer Rogers from
seeking a warrant between midnight and the blood draw at 12:40 a.m. Although obtaining a
warrant in such a small time frame might have been difficult, there are no facts in the record
suggesting it would not have been possible. Again, the officers were operating under the
assumption that a warrant was not necessary. Additionally, there is no evidence that any “further
delay in order to secure a warrant” beyond 12:40 a.m. “would have threatened the destruction of
evidence” that “is lost gradually and relatively predictably.” McNeely, ___-___ U.S. at ___, 133
S. Ct. at 1561-63. Although the State cannot present retrograde extrapolation evidence in Idaho
if the defendant’s BAC is under .08 at the time of the blood draw, see State v. Daniel, 132 Idaho
701, 702, 979 P.2d 103, 104 (1999) abrogated on other grounds by Verska v. Saint Alphonsus
Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011), Franklin’s BAC was well over that
threshold at 12:40 a.m. Because the district court found officers in Boise County could obtain a
warrant relatively quickly, any further delay beyond 12:40 a.m. in order to secure a warrant
likely would not have materially affected the State’s ability to prove an alcohol concentration
above .08.

                                               9
       Accordingly, we hold exigent circumstances did not exist to justify the warrantless blood
draw because, in the totality of the circumstances, any delay necessary to obtain a warrant would
not have threatened the destruction of evidence in this case.
                                                III.
                                         CONCLUSION
       The district court’s factual finding that Officer Tatilian requested the blood draw around
midnight was not clearly erroneous. However, the court’s factual finding that “the process to
obtain a warrant could not have begun until about midnight” was clearly erroneous and exigent
circumstances did not exist to justify the warrantless blood draw. The district court’s order
denying Franklin’s motion to suppress is reversed and the case is remanded to the district court
for further proceedings.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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