IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34399
STATE OF IDAHO,
Plaintiff-Respondent,

v. ERIC A. REYNOLDS,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) 2008 Opinion No. 68
Filed: July 14, 2008
Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial Distri ct, State of Idaho, Kootenai County. Hon. Fred M. Gibl er, District Judge.
Order denying motion to suppress evidence, affirmed

. Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney Ge neral; Thomas Tharp, Deputy Attorney General, Boise, for respondent.

______________________________________________ LANSING, Judge Eric A. Reynolds appeals from his judgm ent of conviction on various drug-related charges. He argues that the di strict court erred in denying his motion to suppress evidence found during a warrantless search of his home. We affirm.
I.
BACKGROUND At approximately 10 p.m., three police officers were dispatched to the home of Eric and Melissa Reynolds to investigate a telephoned repor t from Melissa’s mother that Reynolds was holding Melissa against her will. The officers ar rived simultaneously and saw Reynolds standing just outside of the fr ont door, which was ajar. Two of th e officers approached Reynolds and began to question him about the reported alterca tion. In the meantime, a third officer, Officer Harmon, entered the home through the partially-ope ned front door. He did not hear any noises coming from the house, nor did he first knock, announce his presence, or call for Melissa.

1Upon entering, Officer Harmon saw Melissa st anding in the living room about ten feet from the door. She was visibly upset. She said that Reynolds had pushed her onto the couch and also restrained her when she was trying to leav e the bedroom. A few minutes after entering,
Officer Harmon smelled an odor that he believed to be marijuana. He questioned Melissa about the scent, and she said that there was marijuan a in another room. Officer Harmon then motioned the two other officers, Farina and Hicks, into th e house. Officer Farina asked Melissa if there were any weapons or other people in the home. She said there were no other people in the house, and directed Officer Fa rina down a hallway to an o ffice which contained a handgun as well as a large plywood box or closet that was appr oximately four feet long, four feet wide, and
six feet tall. Officer Farina th en requested and received Melissa’s consent to search the home.
She told the officer that th e large plywood box, which was lo cked, belonged to Reynolds.
Melissa told the officer that she did not have th e key to unlock the closet and that it was probably on Reynolds’ key ring. Nonetheless, the two bega n to search the office for a key that would open the closet. Melissa pointed to a key ring hanging on the wall and instructed Officer Farina to try the key. It opened the plywood box, and the officer saw within marijuana plants and grow lamps. At some point--whether before or afte r opening the box is unclear --Officer Farina also observed in another room marijuan a hanging from the ceiling to dry. Reynolds was charged with manufacturing a controlled substan ce, Idaho Code § 37- 2732(a); possession of marijuana in excess of three ounces, I.C. § 37-2732(e); domestic battery, I.C. § 18-918(3)(b); and possession of drug paraphe rnalia, I.C. § 37-2734A. He filed a motion to suppress the evidence found in the house, argui ng that his Fourth Amendment rights were
violated when the officers entered the home and th at Melissa did not have authority to consent to a search of his locked plywood box. The districtcourt denied the motion, finding that exigent circumstances justified the officers’ entry into the home and that Melissa had at least apparent authority to consent to a sear ch of the box. Reynolds conditiona lly pleaded guilty to possession of marijuana in excess of three ounces and do mestic battery in exchange for the State’s agreement to dismiss the remaining charges and to recommend concurrent sentences. Reynolds now appeals the denial of his suppression motion.

2II.
DISCUSSION/ANALYSIS
A. Standard of Review In reviewing a decision to gr ant or deny a motion to suppress evidence, this Court defers to the trial court’s findings of fact unless they are clearly erroneous. State v. Hawkins , 131 Idaho 396, 400, 958 P.2d 22, 26 (Ct. App. 1998). The determin ation whether a sear ch is reasonable, and therefore complies with the Fourth Amendment, is a question of law, however, over which
we exercise free review. State v. Bunting , 142 Idaho 908, 912, 136 P.3d 379, 383 (Ct. App. 2006). B. The Entry Was Illegal Reynolds argues that the evidence discovere d during the search of his home must be suppressed because the police il legally entered the house without a warrant or other lawful justification in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects the “right of the people to be secure in th eir persons, houses, papers, and effects, against unreasonable searches and seizur es.” The “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v.
United States District Court , 407 U.S. 297, 313 (1972). See also Payton v. New York , 445 U.S. 573, 589-90 (1980); State v. Johnson
, 110 Idaho 516, 523, 716 P.2d 1288, 1295 (1986); State v.
Robinson , 144 Idaho 496, 498-99, 163 P.3d 1208, 1210-11 (Ct. App. 2007). Such entries and
other searches conducted without a warrant are presumed to be unreasonable, United States v.
Leon , 468 U.S. 897, 960 (1984); State v. Martinez , 129 Idaho 426, 431, 925 P.2d 1125, 1130 (Ct. App. 1996), but there are a few carefully deli neated exceptions to this presumption. Leon , 467 U.S. at 960-61; State v. Brauch
, 133 Idaho 215, 218, 984 P.2d 703, 706 (1999). The State bears
the burden to show that a warrantless search fe ll within one of these well-recognized exceptions to the warrant requirement or was otherw ise reasonable under the circumstances. Martinez , 129 Idaho at 431, 925 P.2d at 1130. The State argues here that the officers’ warrantless entry into Reynolds’ home was permissible under the exigent circ umstances exception, which allows for warrantless searches by state agents when there is compelling need for o fficial action and no time to secure a warrant. Michigan v. Tyler , 436 U.S. 499, 509 (1978); State v. Barrett , 138 Idaho 290, 293, 62 P.3d 214, 217 (Ct. App. 2003); State v. Sailas , 129 Idaho 432, 434, 925 P.2d 1131, 1133 (Ct. App. 1996).

3The test for application of this warrant exception is whether the facts known to the agent at the time of entry, together with reasonable infere nces, would warrant a re asonable belief that an exigency justified the intrusion. Barrett , 138 Idaho at 293, 62 P.3d at 217. A law enforcement officer’s reasonable belief of danger to the poli ce or to other persons inside or outside the dwelling is one type of exigency that may justify a warrantless entry. Minnesota v. Olson , 495 U.S. 91, 100 (1990); Bunting , 142 Idaho at 912-13, 136 P.3d at 383-84. Thus, the necessity to protect or preserve life or avoid serious injury will legitimize an otherwise illegal intrusion. An example of such an exigency is found in Sailas , 129 Idaho 432, 925 P.2d 1131, where an officer responded to a report of a domestic disturbance. As the officer approached the apartment, she could hear yelling and screaming. The officer knocked on the door. The victim, who had blood on her nose and hands, answered the door and said that she did not need the assistance of the police. The defendant continue d shouting at the victim thr oughout this conversation, and the officer could also see a child in the house. The officer then entered the apartment, and the
defendant later contended that the entry was unlawful. We held that exigent circumstances justified the entry because the volatile circumstances suggested that there was a risk of further injury to the victim or injury to the child if th e police waited to secure a warrant before entering the defendant’s apartment.
Another illustrative case is State v. Pearson-Anderson , 136 Idaho 847, 41 P.3d 275 (Ct. App. 2001), which began when a 911 emergency opera tor received a hang- up call. The operator
traced the call to the home where Pearson-Anderson resided with her boyfriend. When the operator telephoned that residence, someone pi cked up the telephone and then immediately hung up. The 911 operator alerted police who went to th e home to investigate. When they arrived, they heard yelling and saw Pearson-Anderson and her boyfriend lying on the floor across the threshold, struggling with one another. The o fficers separated the two and questioned them. Pearson-Anderson said that she had made the 911 call because the boyfriend was preventing her from leaving the home, and he hung up the telephone before she c ould speak. She said that the boyfriend also hung up the telephone when the 911 operator called back. When asked about the reason for the fight, Pearson-Anderson said it ar ose because the boyfriend had given a key to the
home to another woman who had been in the home earlier but was not currently there. One of the officers then went into the home to determine whether there were any third persons in need of help. That officer found evidence of methamphetamine manufacturing, for which Pearson4Anderson was ultimately arrested. We held thatthe officers’ warrantless entry of the home was justified by the 911 hang-up call and rejected P earson-Anderson’s assertion that any concerns arising from that call were laid to rest by her ex planation of the events. We noted that PearsonAnderson’s own explanation referred to a third person (the other woman) who had been in the home and whose actions were repo rtedly the cause of the fight, raising the possibility of thirdparty involvement. We also said that where a 911 hang-up call had been received, responding officers were not required to simp ly take the word of a person at the scene who offers a plausible explanation and assures the officers th at all is well. We explained: In our view, 911 hang-up calls are qual itatively different from ordinary emergency calls in which the caller communicates with the operator. In the latter circumstance, responding officers ordinar ily know, at a minimum, the gender of the caller and something about the natu re of the emergency. With this information, officers who have responde d can discern whether the reported emergency is under control and whether th ey have communicated with the person who was in need of help. The same ca nnot be said when the 911 call has been disconnected before there is any comm unication with the operator. When responding to a 911 hang-up call, officers may reason ably be cautious about concluding that the need fo r help has dissipated base d solely upon an explanation from whoever greets them upon their arrival. Id. at 850, 41 P.3d at 278. In this case, the only factor that suggested a possibl e exigency was the report that Reynolds’ wife was being held against her will. By the time the officers arrived, however, Reynolds was standing outside th e house, and the front door was ajar. With the couple thus separated, it was appare nt that if there was a woman in the house, she was under no immediate risk of harm from Reynolds wh ile he was outside being questione d by an officer. Therefore, there was no exigency that would justify entry into the house without first knocking or calling out to bring any occupant to th e door where she could be intervie wed and the situation assessed.
If Officer Harmon had first knocke d or called out to occupants and received no response, the telephoned report of a woman being held against he r will could have justif ied a warrantless entry
to ensure that there was no one in the house who was physically restrained or too frightened to respond to the officers, but that did not occur.
This situation should be contrasted to that in Barrett , 138 Idaho 290, 62 P.3d 214, where police were dispatched to a home on a report of a medical emergency. They encountered a man outside the home, in physical distress, incoherent, and unable to communicate the cause of his medical condition. A neighbor informed the poli ce that the man had several family members
5who lived at the house but had not been seen all day. Officers shouted for any family members, but received no response, and so entered the home . We held that this entry was justified by exigent circumstances, noting that the unexplained medical emergency, coupled with the officers’ inability to contact anyone in the home , suggested a reasonable possibility that other occupants in the home were also in distress. In the present case, there was no attempt by po lice officers to contact the alleged victim through non-intrusive means such as knocking or calling out for her, and the surrounding circumstances did not suggest an immediate danger that would justify dispensing with an effort to bring someone to the door to be interviewed. Had the latter action been taken, the officers’
interview of Melissa could have either supported or dispelled the report that she was being held against her will. If the results of that interview left officers concerned that there could still be an individual in danger inside the house, and if pe rmission to search could not be obtained from Reynolds or Melissa, perhaps a warrantless entry would have b een justified. But in the circumstances as they are presented to us, there was no appearance of an immediate risk of harm
sufficient to excuse the officers from the norma l procedure of knocking or calling out to bring someone to the doorway for questioning. The ci rcumstances here did not support a reasonable belief that immediate entry into the home was necessary.
C. Melissa’s Consent to a Search Was Valid Notwithstanding the illegality of this initial entry, the Stat e argues that evidence found in the home should not be suppressed because Melissa’s subsequent consent to the officers’ further
intrusion into the home and the ultimate opening of the plywood box authorized and legitimized the officers’ search and discovery of the marijuana. A voluntary consent to a search, given by eith er the defendant or a third party with authority over the place or item to be sear ched, will exempt a search from the warrant requirement. Schneckloth v. Bustamonte , 412 U.S. 218 (1973); State v. Stewart , 145 Idaho 641, 644, 181 P.3d 1249, 1252 (Ct. App. 2008). The burden of proving that consent has been given, and that the person giving the consent had authority to do so, is on the State. Illinois v. Rodriguez , 497 U.S. 177, 181 (1990); State v. Abeyta , 131 Idaho 704, 708, 963 P.2d 387, 391 (Ct. App. 1998); Johnson , 110 Idaho at 522, 716 P.2d at 1294; State v. Huskey , 106 Idaho 91, 93, 675 P.2d 351, 353 (Ct. App. 1984).

6If the consent was preceded by police conduct th at violated the accused’s constitutional rights, however, the State must also prove that the consent was not procured by exploitation of the previous illegality. Wong Sun v. United States , 371 U.S. 471, 488 (1963); State v. Tietsort , 145 Idaho 112, 175 P.3d 801 (Ct. App. 2007). In such a circumstance, the question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun , 371 U.S. at 488. Whether the connection between the illegal police conduct and the discovery of evidence is sufficiently attenuated to allow use of the evidence against the defendant requires consideration of three factors: (1) the elapsed time between the misc onduct and the acquisition of the evidence, (2) the occurrence of intervening circumstances, and (3 ) the flagrancy and purpose of the improper law
enforcement action. Brown v. Illinois , 422 U.S. 590, 603-04 (1975); State v. Page , 140 Idaho 841, 846-47, 103 P.3d 454, 459-60 (2004). Accordingly, to determine whether the evidence found in Reynolds’ home must be suppressed, we must determine whether Melissa’s c onsent to the officers’ further intrusion into the home and search of the box was voluntary; wh ether Melissa possessed authority to authorize the officers’ intrusion into all of the areas that were searched; and whether the three Brown
factors indicate that the connect ion between the officers’ unlawf ul entry and Melissa’s consent was sufficiently attenuated thatthe consent was untainted.
1. Voluntariness of consent Here, two forms of consent were given, the first being implied. The implied consent occurred when, in response to Officer Farina’s question whether there were any weapons in the home, Melissa directed the offi cer down a hallway and into another room to show where a handgun was located. The express consent occurre d thereafter when Fa rina requested, and Melissa gave, consent to a search of the home. Whether a consent to a search was voluntary is an issue of fact, and we theref ore defer to the trial court’s findings as to voluntariness. Tietsort , 145 Idaho at 119, 175 P.3d at 808; State v. Jaborra , 143 Idaho 94, 97-98, 137 P.3d 481, 484-85 (Ct. App. 2006). Here, the distri ct court found that Melissa’s c onsents were voluntary, and the evidence fully supports that finding. First, we note that although the officers’ unlawful entry violated the constitutional rights of Melissa, who was a re sident of the home, as well as those of Reynolds, nothing in the record suggests that sh e found their entry objectionable. To the

7contrary, she acknowledged that she was the victim of the domestic disturbance that the officers were there to investigate and, so far as appe ars from the record, she welcomed the police presence and was happy to cooperate. She took th e initiative in directing Officer Farina down the hallway and into th e office where the gun was located, and the police employed no coercive
tactics either then or thereafter when they requested her ex press consent for a larger search. 2. Melissa’s authority to consent The next question is whether Melissa possessed authority to consent to the search. As noted above, a third party’s consent to a search will relieve government agents of the warrant requirement only if the person possessed authority to provide such a consent. Actual authority exists if the consenting party shares with the defendant common authority over the place searched. Such common authority generally is shared by co-habitants of a residence. The United States Supreme Court has explained: Common authority is, of course, not to be implied from the mere property interest a third party has in the pr operty. The authority which justifies the third-party consent . . . rests . . . [up]on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants ha s the right to permit the inspection in his own right and that the others have a ssumed the risk that one of their number might permit the common area to be searched. United States v. Matlock , 415 U.S. 164, 171 n.7 (1974). See also State v. Ham , 113 Idaho 405, 744 P.2d 133 (Ct. App. 1987) (mother had access to rent -paying son’s room sufficient to give her authority to consent to search). As we noted in Brauch , 133 Idaho at 219, 984 P.2d at 707, married couples generally have common aut hority over the premises they share. In this case, Melissa was ma rried to Reynolds and shared th e residence with him. She plainly possessed actual authority to consent to Officer Farina’s walk from the living room into the office where he saw the handgun and the larg e box, and to grant his subsequent request to search throughout the house. The question of Melissa’s auth ority to permit the officers to open the big box in the office is more problematic. Common authority over shared premises does not necessarily translate into authority to search specific containers. That is, “The shared control of ‘host’ property does not serve to forfeit the expectation of priv acy in containers within that property.” United States v.
Welch , 4 F.3d 761, 764 (9th Cir. 1993), overruled on other grounds United States v. Kim , 105 F.3d 1579 (9th Cir. 1997). See also United States v. Davis , 332 F.3d 1163 (9th Cir. 2003)

8(housemate did not have authority to consent to search of gym bag under defendant’s bed);
United States v. Block , 590 F.2d 535 (4th Cir. 19 78) (mother did not have authority to consent to
search of locked trunk when she said it belonged to defendant a nd she did not have key to open it). United States v. Davis , 967 F.2d 84 (2nd Cir. 1992) (indiv idual had common authority to
consent to search of his footlo cker that he allowed defendantto store items in, even though defendant had only genuine key); United States v. Salinas-Cano , 959 F.2d 861 (10th Cir. 1992) (girlfriend lacked authority to consent to sear ch of suitcase left in girlfriend’s apartment by defendant, who stayed there severa l nights a week, where girlfriend expressly denied ownership). Even a spouse may not have actu al authority to consent to a search of property owned by the other if the spouse has no right or abil ity to control or access the item. Cf. United States v.
Duran , 957 F.2d 499 (7th Cir. 1992) (wife could consent to search of outbuilding that she did not use when nothing prevented her from using it); United States v. Harrison , 679 F.2d 942 (D.C. Cir. 1982) (wife had common authority to cons ent to search of boxes containing husband’s personal property in unlocked storage area in ba sement when boxes were not sealed and did not in any way indicate husband’s exclusive ownership or control). In the absence of actual authority, a search nevertheless may be valid if, based on the information known at the time, the law enforcemen t officer had an objectiv ely reasonable belief that the consenting party possessed aut hority over the place to be searched. Rodriguez , 497 U.S. at 188; Brauch , 133 Idaho at 219, 984 P.2d at 707; State v. McCaughey , 127 Idaho 669, 674, 904 P.2d 939, 944 (1995); State v. Hawkins , 131 Idaho 396, 400, 958 P.2d 22, 26 (Ct. App. 1998). For example, in McCaughey , the victim was temporarily livi ng with her husband after a period of separation and was in the pro cess of moving her things from the home. After a domestic violence incident, she consented to a search of the home. The husband had taken steps to keep her out of the shed and basement, but the officer was not aware of these details of the living arrangement. Prior to the search, the officer had been told that the victim was married to the
defendant and lived in the house. Additionally, the victim’s prope rty was at the house, and the victim produced the keys to the locked basement and shed. Under these circumstances, where nothing suggested to the officer that the victim’s dominion and control over any part of the house was limited, the Supreme Court held that the vic tim had apparent authority to consent to a search. Likewise, in United States v. Ruiz , 428 F.3d 877 (9th Cir. 2005) it was held that the occupant of a trailer had apparentauthority to consent to the search of a gun case on a shelf in

9the living room when the occupant answered questions about the case without disclaiming
control over it. And in White v. United States , 444 F.2d 724 (10th Cir. 1971) a woman holding
herself out as the defendant’s wife was deemed to possess authority to consent to the search of a cloth bag when she neither objected to the sear ch nor indicated to o fficers that the bag was exclusively the defendant’s property. In this case, Melissa disclaimed ownershi p of the plywood box and told officers that she
did not want it in the house. She also told Officer Farina that she seldom went into the room with the box, but she did not indicate to the office rs that Reynolds had forbidden her to open the box or prevented her from accessing its contents. There is no evidence that she lacked the right or ability to access or use the box. Altho ugh the box was locked and Melissa did not immediately know exactly where the key was lo cated, it was quickly found hanging on the wall
in the same room where the box was situated. Th e officers knew that th e box was located in the marital home that Melissa shared with Reynolds and that she could readily access it by simply finding the correct key on a ring of keys located nearby. Absent any evidence that the officers knew that Reynolds had attempted to forbid or prevent Melissa’s access to the box, the officers were justified in a belief that Melissa had aut hority to consent to th eir search of the box’s interior. The evidence supports the district court’s finding thatMelissa had at least apparent authority to consent to the search of the box. 3. Attenuation of taint from the illegal entry Lastly, we turn to the attenuation question--w hether Melissa’s consent was “fruit of the poisonous tree,” i.e., a product of the unlawful en try. The finding that Melissa’s consent was voluntary is important, but not decisi ve, in this inquiry. As noted a bove, there is a three-part test
to determine whether there was a sufficient br eak in the causal chain between the unlawful conduct and the discovery of challenged evidence. The first of the three fa ctors to be considered is the lapse of time between the police misconduct and Melissa’s consent. In this case, that time period was very brief, which militates against a finding of attenuation. The other two factors, however , weigh in favor of attenua tion. First, the warrantless entry into the Reynolds’ home without a warrant or permission was not a particularly egregious
Fourth Amendment violation. The officer did so in the belief that someone may have been held against her will in the house. He entered not for a calculated purpose of trying to discover evidence of a crime, but rather to determine the location and well-being of an alleged victim of a

1011 domestic disturbance. Having entered, he went only a few feet inside before making contact with Melissa, and she consented to any further intrusion. Fina lly, the unsolicited and entirely
self-initiated nature of Melissa’s invitation for an officer to walk into the office to see the gun, and her personal willingness to co operate with the officers, is an intervening circumstance that separates the consent from the viol ation of Reynolds’ constitutional rights that occurred when the police entered. Apart from the temporal proxim ity, there is no evidence in the record that Melissa’s cooperation and consent were products of the unlawful en try. Nothing indicates that she was intimidated by the officers’ unannounced entry. The only information that the officers gained by their initial unlawful entry was the scen t of marijuana, but that was not the reason that
Melissa showed Officer Farina ar ound the house. Rather, she led him into the office in response to the officer’s question about the presence of w eapons, a legitimate inquiry considering that the purpose of the visit was to investigate a domestic disturbance. Weighing al l of the factors that are to be considered in an attenuation analys is, we conclude that Melissa’s consent was not acquired by exploitation of the illegality but, instead, “by mean s sufficiently distinguishable to be purged of the primary taint.” Wong Sun , 371 U.S. at 488. Because the consent was given voluntarily by someone with apparent authority and was not tainted by the officers’ ini tial unlawful entry into Reynolds’ hom e, the district court properly refused to suppress the evidence found.
III.
CONCLUSION Although the officers’ initial entry into Re ynolds’ home was unlawful, the district court correctly denied his suppression motion. The ev idence shows that Melissa voluntarily consented
to the officers’ search of her home and the large box within it, th at she had actual or apparent authority to do so, and that her consent was not tainted by the offi cers’ prior unlawful entry into the house. Therefore, the order denying Reynol ds’ motion to suppress evidence is affirmed. Chief Judge GUTIERREZ and Judge PERRY CONCUR.