State v. Johnson

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45993

STATE OF IDAHO, )
) Filed: June 20, 2019
Plaintiff-Respondent, )
) Karel A. Lehrman, Clerk
v. )
) THIS IS AN UNPUBLISHED
KELLY LUCAS JOHNSON, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Nancy Baskin, District Judge.

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

Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________

BRAILSFORD, Judge
Kelly Lucas Johnson appeals from the judgment of conviction entered upon her
conditional guilty plea to possession of methamphetamine, Idaho Code § 37-2732(c)(1). She
asserts the district court erred in denying her motion to suppress. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Johnson was charged with possession of methamphetamine and possession of marijuana
following a search of her residence. The search occurred after two Boise police officers
responded to a report of a possible domestic disturbance at Johnson’s residence. When the
officers knocked on the door of the residence, Johnson allowed them to enter. Both officers
immediately noticed the odor of burnt marijuana.

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After entering the residence, the officers investigated the domestic disturbance. Although
Johnson initially denied anyone else was in the house, she recanted and admitted a male friend
was in the back bedroom. While the first officer remained with Johnson and questioned her
about the domestic disturbance, the second officer proceeded to the back bedroom to talk to the
male friend. As the second officer did so, he noticed the odor of burnt marijuana became
stronger and was strongest in the back bedroom. Meanwhile, the first officer and Johnson went
to a detached part of the residence to talk to a woman Johnson identified as her “sister” and who
had reported the domestic disturbance. Johnson, her sister, and Johnson’s male friend all denied
there had been any physical altercation at the residence.
After speaking to each of the occupants and confirming there was no domestic violence,
the second officer then questioned Johnson about the marijuana odor. Initially, Johnson denied
the odor but eventually admitted she and another friend had smoked marijuana in the house
earlier in the day. At that point, the second officer asked Johnson for consent to search the
residence. Johnson inquired whether a warrant was needed, and the officer responded a warrant
was not needed if Johnson would consent. Johnson denied consent.
The officer then explained that he did not intend to take anyone to jail; he was at a
crossroads of deciding whether to apply for a search warrant if he did not have Johnson’s
consent; and he was “less likely to give [Johnson] a break” if he had to get a search warrant. The
officer testified this discussion with Johnson about obtaining a warrant lasted approximately two
minutes and thirty seconds. In contrast, Johnson testified it lasted approximately twenty-five
minutes.
Eventually, Johnson stood up, said she would get the marijuana, and walked past the
officers toward the back bedroom. The second officer followed Johnson. While in the back
bedroom, Johnson retrieved two little containers of marijuana and handed them to the officer,
and the officer noticed a propane torch, which is commonly used with methamphetamine. The
officer then requested consent to search the bedroom. While crying, Johnson responded “Sure.
Do whatever you want.” During this search, the officer located a baggy of white crystal
substance, consistent with methamphetamine, in an eyeglass container. Johnson admitted the
methamphetamine was hers.
Each officer testified he believed there was probable cause to obtain a search warrant
based on the marijuana odor. Nevertheless, the second officer repeatedly told Johnson he was

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not taking her to jail, and ultimately Johnson was not arrested. The State, however, later charged
Johnson with possession of methamphetamine and possession of marijuana. Johnson moved to
suppress the evidence seized during the search. In support of her motion, Johnson argued “the
officers refused to leave and badgered and cajoled [her] over the course of more than 2 hours.”
She asserted her consent was not voluntary but a result of duress and coercion.
At the motion to suppress hearing, Johnson and both officers testified, and the videos
from both officers’ body cameras were admitted. The district court ruled at the hearing. It noted
that “in considering the totality of the circumstances and the factors discussed in the relevant
case law, it is clear that an officer’s indication that he will seek a warrant does not render
subsequent consent to the search involuntary.” The district court found that the videos from the
body cameras were the best evidence of what occurred; Johnson’s testimony and supporting
motion were “an inaccurate summary of what occurred”; Johnson told numerous lies and
inconsistencies to the officers; the officers were “calm,” “professional,” and did not “raise their
voice[s]”; and Johnson’s “consent was given freely and voluntarily and it was not the result of
coercion, either direct or implied.”
Based on these findings, the district court concluded the search was lawful and denied
Johnson’s motion. Thereafter, Johnson entered a conditional guilty plea to a reduced charge of
possession of methamphetamine, but she preserved her right to appeal the denial of her motion to
suppress. Johnson 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).
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

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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. Id.
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).
III.
ANALYSIS
Johnson argues her consent to search was not voluntary. On appeal, she simply reiterates
her argument before the district court. She asserts that she refused to consent but that the officers
“threatened [Johnson] with being arrested and taken to jail if she forced them to get a warrant”;
“entic[ed] her with the idea that they would not take her to jail if she cooperated”; and “broke
down her resistance and obtained her capitulation to their request for consent.” We disagree.
Neither the evidence nor Idaho case law supports Johnson’s argument that her consent was
involuntary.
This Court’s decisions in State v. Garcia, 143 Idaho 774, 152 P.3d 645 (Ct. App. 2006)
and State v. Ballou, 145 Idaho 840, 186 P.3d 696 (Ct. App. 2008) are dispositive of Johnson’s
argument. Ballou addresses whether an officer’s statement that he will obtain a search warrant
absent consent renders subsequent consent coerced and involuntary. In Ballou, police officers
knocked on Ballou’s apartment door after he had eluded the officers in a high-speed chase. Id. at
843-44, 186 P.3d at 699-700. Ballou’s wife answered the door, wearing only a blanket. Id. at
844, 186 P.3d at 700. An officer told her that, if she refused to consent to the officer’s search of
the apartment for Ballou, the officer could “detain [the wife] in handcuffs, put her in a patrol car,
and watch the house until [the officer] got a warrant.” Id. As a result, Ballou’s wife allowed the
officers to enter the apartment “just as Ballou was jumping out of a back window.” Id. The

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officers apprehended Ballou, and thereafter they returned to Ballou’s apartment numerous times
seeking consent for additional searches. 1 Id.
Ultimately, the officers’ search yielded burglary tools and stolen goods, which Ballou
sought to suppress, arguing “his wife’s consent was not freely and voluntarily given.” Id. The
district court found that Ballou’s wife’s consent in response to the officer’s initial request to
search the apartment was involuntary because the officer informed Ballou’s wife that “if she
refused to give [consent], then the police would handcuff her and keep her in a patrol car until a
search warrant was obtained.” Id. at 846, 186 P.3d at 702.
Rejecting the district court’s analysis, this Court ruled:
[T]he officers had probable cause to obtain a warrant to search the apartment for
Ballou based on the offense of felony eluding. Thus, the officers were not
responding falsely or erroneously regarding the ability to get a warrant when they
first spoke to Ballou’s wife. Because the officer honestly told Ballou’s wife that a
warrant could be obtained to search the apartment, we conclude that the district
court incorrectly applied the law to the facts in determining that the officer’s
“threat” rendered the initial consent to enter the apartment and search for Ballou
involuntary. Furthermore, we are not persuaded that the officer’s statement to
Ballou’s wife that, if she refused consent to search, she would be handcuffed and
detained rendered her consent involuntary. If Ballou’s wife had denied the
officer’s initial request to enter the apartment and search for Ballou, then the
officers would have been justified in precluding her from returning to the
apartment where she potentially would have been able to destroy evidence or pose
a threat to officer safety as they searched the apartment.
Id. at 848-49, 186 P.3d at 704-05. Accordingly, under Ballou, a threat to obtain a search warrant
does not render consent involuntary as long as the officer does not falsely or erroneously
represent he has probable cause to get a search warrant.
Similarly, this Court in Garcia ruled an officer’s statement that the officer will not arrest
an individual if the individual complies with the officer’s request does not render consent
involuntary, as long as an arrest is within the officer’s authority under the circumstances. In
Garcia, police officers approached several men in a public park, including Garcia, whom the
officers observed smoking marijuana. Garcia, 143 Idaho at 777, 152 P.3d at 648. An officer
told the men that if they handed over “all the marijuana they had, they would be given citations
and released but, if not, they would be arrested.” Id. During this encounter, Garcia consented to

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Only the Ballou Court’s analysis of the initial request for consent to search in lieu of
obtaining a warrant is relevant to Johnson’s argument. For this reason, we do not discuss the
Ballou Court’s analysis regarding the validity of other subsequent consents.
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the search of his truck in which the officers discovered two pounds of marijuana. Id. Garcia
moved to suppress the marijuana, arguing his consent was coerced by the officer’s statement the
men would not be arrested if they handed over the marijuana. Id. at 779, 152 P.3d at 650. The
district court denied Garcia’s motion.
Affirming the district court, this Court ruled “an officer’s implied or explicit offer not to
arrest a suspect if he ‘turns over what he has’ is not 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. The Court concluded the officers had
probable cause to arrest the men for delivery of marijuana because there had been a report of
men smoking marijuana in the park, and the officers had observed the men passing a marijuana
cigarette among them. Id. at 780 n.2, 152 P.3d at 651 n.2. Accordingly, this Court concluded
the officer’s statement that the men would not be arrested if they handed over the marijuana was
“an informational communication regarding authority the officers actually possessed” and did
not render Garcia’s consent involuntary. Id. at 780, 152 P.3d at 651.
As in Garcia and Ballou, Johnson’s consent in this case was neither coerced nor made
under duress but, rather, it was voluntary. As the district court found, the evidence does not
support Johnson’s claim of coercion, and Johnson’s testimony is not credible. “[W]here
voluntariness is an issue, ‘the power to judge the credibility of the witnesses . . . is vested in the
trial court,” and we decline to disturb the district court’s finding that Johnson’s testimony was
not credible. Valdez-Molina, 127 Idaho at 106, 897 P.2d at 997.
Furthermore, substantial evidence supports the district court’s conclusion that the officers
had probable cause to obtain a search warrant based on the officers’ testimony about smelling
marijuana. Likewise, the officers had probable cause to arrest Johnson based on the odor of
marijuana and Johnson’s admission--before the officers requested consent to search Johnson’s
residence--that she had been smoking marijuana. Moreover, Johnson does not dispute on appeal
that there was both probable cause to arrest her and to obtain a search warrant. Because the
officers had probable cause to arrest Johnson and to obtain a search warrant, their statements that
they did not intend to arrest Johnson; were considering obtaining a search warrant; and would
give Johnson “a break” if she consented, simply conveyed the officers’ authority based on the
circumstances. As such, the statements did not render Johnson’s consent involuntary, and the
searches were not unlawful.

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IV.
CONCLUSION
The district court correctly concluded that Johnson’s consent was voluntary and that the
officers’ searches were lawful. Accordingly, we affirm the denial of the motion to suppress, and
Johnson’s conviction for possession of a controlled substance is affirmed.
Judge HUSKEY and Judge LORELLO CONCUR.

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