               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42993

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 472
                                               )
       Plaintiff-Respondent,                   )    Filed: April 6, 2016
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
MARVIN GORDON CROTTO,                          )    THIS IS AN UNPUBLISHED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. Steven J. Hippler, District Judge.

       Order denying motion to suppress, vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Jenny C. Swinford, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Marvin Gordon Crotto appeals from the district court’s judgment of conviction, asserting
the district court erred in denying his motion to suppress. We vacate and remand.
                                               I.
                        FACTUAL AND PROCEDURAL HISTORY
       Officers Keely and Reimers conducted a knock and talk in response to an anonymous tip
concerning possible drug activity at a Boise home. Crotto answered the door and let the officers
into his home. Crotto and another man were present in the home. Officer Keely told Crotto the
officers were responding to an anonymous tip concerning possible illegal, drug-related activity
occurring in the home, based on the unusual number of visitors frequenting the residence
throughout the week.




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       Crotto explained the traffic was resultant of regular visits of his PSR1 worker, therapists,
other service providers, and a small number of friends. Officer Keely asked what disabilities
Crotto had, to which Crotto responded, “kind of mental.” Officer Keely and Crotto continued
discussing the issue of drug activity, and Crotto admitted he smoked marijuana in the past and he
still occasionally smoked with friends.
       Officer Keely asked Crotto for permission to search the residence for evidence of drug
activity, based on the tip and Crotto’s admissions. Crotto denied permission, citing privacy
concerns. Officer Keely asked why Crotto refused to consent to a search and stated that he
wanted to resolve the complaint with Crotto’s cooperation. Crotto continued to resist Officer
Keely’s requests to search. Officer Keely asked Crotto to retrieve the marijuana and drug
paraphernalia currently in his bedroom. Crotto agreed, but then resisted when the officers
insisted that Officer Reimers accompany him for safety reasons. Eventually, Crotto acquiesced
when Officer Reimers agreed to stand in the doorway, but not enter the bedroom. Crotto then
retrieved a marijuana pipe from the bedroom.
       After receiving the pipe, the officers continued to press Crotto to turn over any other
drugs or paraphernalia in his possession. Crotto again agreed to the request and retrieved, still
accompanied by Officer Reimers, a small amount of marijuana from a safe in his bedroom. The
officers continued to press Crotto for permission to search but Crotto again denied permission,
becoming audibly more anxious and distressed. After turning over some more marijuana, Crotto
admitted to having pills everywhere and one or more grinders. He then stated several times that
he wanted to go to Intermountain (a mental health treatment facility). The officers told Crotto
that he was free to go to Intermountain, but that would likely result in the officers submitting an
application for a search warrant. The officers stated they would prefer to close the investigation
with Crotto’s voluntary assistance.
       The officers told Crotto several times that he was not under arrest.          Additionally,
throughout the encounter, the officers repeatedly told Crotto that his reluctance to grant
permission to the search, and his escalating anxiety, indicated that there was contraband in the
home. The officers repeatedly assured Crotto throughout the encounter that they would not take
him to jail that day and that Crotto’s cooperation would be noted in the officers’ reports. Crotto

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       Psychosocial Rehabilitation Worker, a worker employed by the state to help take care of
individuals with disabilities.
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eventually allowed Officer Reimers to search the bedroom safe, and Officer Reimers discovered
various additional items of paraphernalia and methamphetamine.            The investigation lasted
approximately fifty minutes.
       The State charged Crotto with three crimes: felony possession of a controlled substance,
methamphetamine; felony possession of a controlled substance, marijuana, with the intent to
deliver; and misdemeanor possession of drug paraphernalia. Crotto filed a motion to suppress
evidence seized as a result of the search of his safe, arguing that consent to search was the result
of duress and coercion. After a hearing, the district court denied Crotto’s motion to suppress.
The district court held that the officers used sharp investigative tactics that never strayed beyond
the confines of the law and there was no indication that Crotto’s mental health rendered him
unable to validly consent to the search of the safe. Crotto timely appeals.
                                                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
       Crotto argues that the district court erroneously denied his motion to suppress evidence
seized as a result of the search of his safe, because the district court’s determination that Crotto
gave voluntary consent to search the safe was clearly erroneous based on the totality of the
circumstances. Specifically, Crotto argues the district court’s factual findings regarding consent
are unsupported by the evidence in the record because Crotto tried to withdraw his consent
numerous times, his mental abilities rendered him incapable of providing voluntary consent, and
the officers used Crotto’s mental health issues to coerce Crotto into providing consent.



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       The State argues that most of the evidence produced during the investigation--the drug
paraphernalia, the methamphetamine, and the marijuana--was not the result of a search, but
instead, was produced by Crotto before he consented to a search of the safe and, therefore, would
not be suppressed even if the consent to search the safe was involuntary.2 The State further
argues the district court correctly determined there was no basis to suppress the evidence
obtained from the search.
       The district court found both that Crotto “never asked the officers to leave” and that until
Crotto allowed an officer to search the safe, Crotto “repeatedly refused to consent to direct
requests by [the officer] to search, and the officers honored his refusal.” According to the district
court, both facts weighed in favor of the legality of the search. The district court disagreed that
the officers “took advantage of what they knew or believed to be [Crotto’s] diminished capacities
so as to coerce [his] consent or that [Crotto] (objectively speaking) was unable to validly consent
due to his mental condition(s).” The district court found that while the officers used “sharp
tactics,” those tactics did not invalidate Crotto’s subsequent consent. However, because the
district court’s finding that Crotto never asked the officers to leave is clearly erroneous, and that
factual finding was relevant and material to the district court’s determination that consent was
voluntary, we reverse on that issue. We decline to address the other issues raised by Crotto.
       “A trial court’s findings of fact will not be set aside on appeal unless they are clearly
erroneous.” VanderWal v. Albar, Inc., 154 Idaho 816, 821, 303 P.3d 175, 180 (2013) (quoting
Argosy Trust ex rel. Its Trustee v. Wininger, 141 Idaho 570, 572, 114 P.3d 128, 130 (2005)).
“Factual findings are not clearly erroneous if they are supported by substantial and competent
evidence, which is evidence that a reasonable trier of fact could accept and rely upon in
determining that such facts have been proved.” VanderWal, 154 Idaho at 821, 303 P.3d at 180.
       Whether Crotto asked the officers to leave his home is relevant to two issues: whether he
revoked consent for the officers to be in the home, and whether his consent to search the safe
was voluntary. Crotto did not raise the first issue in the district court or on appeal; thus, it will
not be addressed by this Court. Instead, the Court will only analyze whether Crotto requested the




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       To be clear, before the search of the safe, Crotto produced some paraphernalia and
marijuana. The search of the safe disclosed additional paraphernalia and a small baggie of
methamphetamine.
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officers leave his home as a factor in determining whether his consent to search the safe was
voluntary.
       After Crotto first agreed to retrieve contraband from his bedroom, the officers insisted
that one of them accompany Crotto. Crotto refused and proposed the officers wait outside the
bedroom while he retrieved the items. The officers refused because it did not alleviate their
safety concerns. Crotto then stated, “I just don’t want you in my house. It’s just quite simple.
You guys are making me nervous.” The officers pressed Crotto and suggested that he was
reluctant to let an officer accompany him because he had more contraband than he previously
admitted. Crotto indicated it had nothing to do with contraband, he “just [didn’t] want you in my
room. It’s my room I got [sic] all my stuff lay out. Personal stuff.” After further “sharp tactics,”
Crotto turned over some contraband and the officers again sought consent to search. Crotto
stated, “No. He is not going to check. Nothing else. You guys are done [sic] what you’re gonna
do.”
       In State v. Staatz, 132 Idaho 693, 696, 978 P.2d 881, 884 (Ct. App. 1999), we determined
that a request to wait outside constituted a request to leave. In State v. Thorpe, 141 Idaho 151,
154, 106 P.3d 477, 480 (Ct. App. 2004), we determined that a typical reasonable person would
have understood that Thorpe was asking the officers to leave when she told the officers that her
attorney wanted the officers to stop searching if they did not have a warrant. Based on these
cases and the statements made by Crotto, the district court’s finding that Crotto never asked the
officers to leave is not supported by substantial and competent evidence and thus, is clearly
erroneous.
       This district court determined Crotto’s statements weighed in favor of the legality of the
search. But, because the district court did not recognize the statements as a request to leave the
house, the district court’s factual finding that Crotto never asked the officers to leave is clearly
erroneous. This clearly erroneous factual finding was a relevant and material fact that influenced
the district court’s ultimate conclusion that Crotto’s consent to search the safe was voluntary.
Had the court correctly analyzed this relevant fact, we cannot say the district court would have
reached the same conclusion.




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                                             IV.
                                      CONCLUSION
       Based on the foregoing, we vacate the district court’s order denying the motion to
suppress and the judgment of conviction and remand the case for further proceedings consistent
with this opinion.
       Judge GUTIERREZ and Judge GRATTON CONCUR.




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