STATE of Idaho, Plaintiff-Appellant, v. Linda Beth ROBINSON, Defendant-Respondent, 144 Idaho 496

GUTIERREZ, Judge. The state appeals from the district court’s order on intermediate appeal affirming the magistrate’s order granting Linda Beth Robinson’s motion for suppression of evidence. We reverse. I. BACKGROUND The magistrate set forth the following facts of the ease in his memorandum opinion and order granting Robinson’s motion to suppress: Shortly after midnight on December 18th, 2004, police were contacted by a man and woman, traveling together, who reported they were following a woman who appeared to be intoxicated.

Officer Larry Moore of the Boise Police Department spoke with the couple, who described the driving pattern of the suspect vehicle to include: stopping in the traffic lane with a turn signal flashing for no apparent reason, running a stop sign, weaving in her lane of travel and across the bike lane, and almost striking parked cars. The couple also reported to Moore they had followed the vehicle to a residence, and identified for Moore both the vehicle and the residence. Prior to Moore approaching the residence, Officer Harms and Sgt.

Hagler, both Boise Police officers, knocked on the door of the residence, and were greeted by one Jonathan Orenstein, Defendant’s cohabitant at the residence. Sgt. Hagler asked to speak with the operator of the suspect vehicle, and Defendant came to the door. During this initial conversation, apparently in response to Hagler’s request, Defendant provided her driver’s license. When Moore approached the residence to speak with the Defendant, the door was open, and Defendant was seated on the arm of a loveseat, approximately three to four feet inside the residence.

During Moore’s brief conversation with the Defendant, she acknowledged having driven the car from “Mandalay Bay”, where she had consumed “cocktails”, which she later identified as beer. Both Hagler and Moore noted a strong odor of alcoholic beverage coming from the Defendant, and both noted slurred speech. The audio [recording] of the conversation also indicates that Defendant’s speech had the characteristics one would normally associate with someone who was under the influence of alcohol. Moore requested to come into the house to perform field sobriety tests, and Defendant refused to allow him entry.

Moore also asked Defendant to come outside, which she likewise refused to do. It appears from the audio of the incident that Moore had begun to announce his intention to place Defendant under arrest, when Defendant stood up, and began to shut the door. At that time, Sgt. Hagler told Defendant she was under arrest, and both officers came through the threshold of the doorway to take custody of the Defendant.

While there was conflicting testimony regarding whether Moore had his foot on the threshold of the door while in conversation with Defendant, there is no question that he used his foot to keep her from closing the door when she attempted to terminate the conversation and retreat into her home. The magistrate determined that the police had probable cause to arrest Robinson and, considering that her blood alcohol concentration would quickly dissipate if time were taken to obtain a warrant, also determined that exigent circumstances existed.

However, because the charge involved a misdemeanor and because the magistrate determined that the officers’ actions exceeded those allowed by the exigency, the magistrate granted Robinson’s motion to suppress. The district court affirmed on intermediate appeal. II. STANDARD OF REVIEW On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court’s intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993).

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 which 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 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, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764 (1972). [The Fourth Amendment] unequivocally establishes the proposition that at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653 (1980). Warrantless searches and seizures inside a home are presumptively unreasonable. Id at 586, 100 S.Ct. at 1380, 63 L.Ed.2d at 651. “[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Welsh v.

Wisconsin, 466 U.S. 740, 749-750, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984); see, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398,-, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650, 657 (2006) (listing exceptions to warrant requirement). Robinson contends that application of the exclusionary rule is justified because the police lacked probable cause to arrest her at the moment she responded and came to the door. Probable cause is “the possession of information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong presumption that such person is guilty.” State v.

Julian, 129 Idaho 133, 136, 922 P.2d 1059, 1062 (1996). Probable cause is a flexible, common-sense standard; a practical, nontechnical probability, but not necessarily a belief more likely true than false, that the person to be arrested has committed a crime. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 513-14 (1983). “In analyzing whether probable cause existed, this Court must determine whether the facts available to the officers at the moment of the seizure warranted a person of reasonable caution to believe that the action taken was appropriate.” State v.

Gibson, 141 Idaho 277, 282, 108 P.3d 424, 429 (Ct.App.2005) (emphasis added). In other words, probable cause is necessary at the moment officers enter a home. Prior to the officers’ entry, Robinson identified herself as the driver of the suspect vehicle and admitted driving the vehicle after drinking cocktails. The officers noted her slurred speech and the strong odor of alcoholic beverage coming from her direction. This information corroborated citizen witnesses who earlier reported seeing Robinson exhibit erratic and illegal driving behavior shortly before the officers contacted her at home.

Based on these facts, we agree with the magistrate’s conclusion that the officers had probable cause to arrest Robinson. The magistrate in the instant case further determined that probable cause for a felony and exigent circumstances was required pri- or to a lawful warrantless home entry. See State v. Maland 140 Idaho 817, 824, 103 P.3d 430, 437 (2004).

The state contends that the magistrate erred because a crime need not be a felony to trigger the exigent circumstances exception to the Fourth Amendment’s warrant requirement and because the officers’ actions did not exceed the scope of the evidence preservation exigency. “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” Brigham City, 547 U.S. at-, 126 S.Ct. at 1947, 164 L.Ed.2d at 657 (quoting Mincey v.

Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290, 301 (1978)). A warrantless search under this 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 traditional exigencies that may justify a warrantless entry by law enforcement officers are pursuit of a fleeing felon, imminent risk of destruction of evidence, prevention of a suspect from escaping, or danger to the police or to other persons inside or outside the dwelling. State v.

Bunting, 142 Idaho 908, 912, 136 P.3d 379, 383 (Ct.App.2006). The reach of the doctrine is explained in the analysis of the Idaho Supreme Court in State v. Fees, 140 Idaho 81, 90 P.3d 306 (2004), which considered the decisions of the United States Supreme Court involving different classifications of offenses. The trial court, in Fees, granted the defendant’s motion to suppress, ruling that the warrantless entry into Fee’s residence to preserve evidence was unreasonable because it was to preserve evidence of a nonviolent felony. The trial court relied on State v.

Curl, 125 Idaho 224, 869 P.2d 224 (1993), which looked to Welsh wherein the United States Supreme Court held that it was unreasonable under the Fourth Amendment for police to enter into the home of someone suspected of drunken driving in order to preserve evidence of his blood alcohol level in a jurisdiction classifying the offense as a civil infraction. The Welsh court stated, “When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness [from a warrantless house entry] is difficult to rebut____” 466 U.S. at 750, 104 S.Ct. at 2098, 80 L.Ed.2d at 743.

The Court explained that “[g]iven that the classification of state crimes differs widely among the States, the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Id. at 754 n. 14, 104 S.Ct. at 2100 n. 14, 80 L.Ed.2d at 746 n. 14. Because Welsh had not defined what else might constitute a minor offense, however, the Curl court drew the line based upon the nature of the criminal conduct (i.e., violent versus nonviolent), so as to include nonviolent misdemeanors.

In Fees, our Supreme Court acknowledged that the line drawn in Curl as to what constitutes a “minor offense” was inaccurate. Ultimately, the Fees court concluded that when Welsh is read together with Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), a more recent high court decision, the determination of what constitutes a “relatively minor” offense under the Fourth Amendment is based on the nature of the criminal conduct’s penalty, not the nature of the criminal conduct itself. Fees, 140 Idaho at 88, 90 P.3d at 313.

The McArthur court drew the line between crimes that are “jailable versus nonjailable,” and suggested it would allow warrantless non-entry seizures for jailable misdemeanors as diverse as “drag racing, drinking alcohol in a railroad ear or on a railroad platform, bribery by a candidate for public office, and assault.” See McArthur, 531 U.S. at 336,121 S.Ct. at 952,148 L.Ed.2d at 851. However, the McArthur court expressly avoided the question whether the circumstances would have justified the greater intrusion of a warrantless home entry for the jailable misdemeanor marijuana offense in that case.

Although Fees, unlike McArthur, involved a warrantless entry and a jailable felony, the logical implication from the state and federal cases is that jailable misdemeanors are encompassed within the exigent circumstances exception allowing warrantless entry to preserve evidence. See McArthur, at 337, 121 S.Ct. at 953, 148 L.Ed.2d at 851 (Souter, J., concurring) (emphasizing justification for warrantless search had McArthur remained inside to destroy evidence of the jailable misdemeanor crime).

The United States Supreme Court has “never held that a warrant is constitutionally required to arrest for non-felony offenses occurring out of the officer’s presence.” Welsh, 466 U.S. at 756, 104 S.Ct. at 2101, 80 L.Ed.2d at 747 (White, J., dissenting). “[N]othing ... suggests that the fact that a State has defined an offense as a misdemeanor for a variety of social, cultural, and political reasons necessarily requires the conclusion that warrantless in-home arrests designed to prevent the imminent destruction or removal of evidence of that offense are always impermissible.” Id. at 760, 104 S.Ct. at 2103, 80 L.Ed.2d at 750.

Directly on point, People v. Thompson, 38 Cal.4th 811, 43 Cal.Rptr.3d 750, 135 P.3d 3, 11 (2006) reflects the vast majority of jurisdictions rejecting the bright line felony rule. Id. 43 Cal.Rptr.3d 750, 135 P.3d at 10-11; see also Joyce v. Town of Tewksbury, Mass., 112 F.3d 19, 22 (1st Cir.1997) (en banc); Mendez v. People, 986 P.2d 275, 283 (Colo.1999); Dyer v. State, 680 So.2d 612, 613 (Fla.Dist.Ct.App.1996); Threatt v. State, 240 Ga.App. 592, 524 S.E.2d 276, 280 (1999); People v. Lagle, 551, 200 Ill.App.3d 948, 146 Ill.Dec. 551, 558 N.E.2d 514, 519 (1990); State v.

Legg, 633 N.W.2d 763, 773 (Iowa 2001); State v. Paul, 548 N.W.2d 260, 267 (Minn.1996); City of Kirksville v. Guffey, 740 S.W.2d 227, 229 (Mo.Ct.App.1987); State v. Ellinger, 223 Mont. 349, 725 P.2d 1201, 1204 (1986); State v. Nikola, 359 N.J.Super. 573, 821 A.2d 110, 118 (App.Div.2003); People v. Odenweller, 137 A.D.2d 15, 527 N.Y.S.2d 127, 129 (1988); Beachwood v. Sims, 98 Ohio App.3d 9, 647 N.E.2d 821, 825 (1994); State v. Roberts, 75 Or.App. 292, 706 P.2d 564, 566 (1985); Beaver v. State, 106 S.W.3d 243, 248 (Tex.App.2003); City of Orem v. Henrie, 868 P.2d 1384, 1392 (Utah Ct.App.1994); Cherry v.

Com., 44 Va.App. 347, 605 S.E.2d 297, 307 (2004); State v. Griffith, 61 Wash.App. 35, 808 P.2d 1171, 1176, 1176 n. 7 (1991); Goines v. James, 189 W.Va. 634, 433 S.E.2d 572, 577-578 (1993); State v. Hughes, 233 Wis.2d 280, 607 N.W.2d 621, 631 (2000); Rideout v. State, 122 P.3d 201, 210 (Wyo.2005). Accordingly, the misdemeanor driving under the influence (DUI) offense of which Robinson was suspected, which carries a penalty of up to six months jail time, I.C. § 18-8005, falls under the category of a jailable offense within the exigent circumstances doctrine.

The distinction between felony and misdemeanor for purposes of the exigent circumstances doctrine no longer has a valid basis in state or federal law. Justification for a warrantless entry hinges upon whether the intrusion was objectively reasonable under the circumstances. Brigham City, 547 U.S. at-, 126 S.Ct. at 1947, 164 L.Ed.2d at 657. The magistrate found Robinson’s person contained evidence that was evanescent in nature and would quickly dissipate if time were taken to seek a warrant. See Welsh, 466 U.S. at 753, 104 S.Ct. at 2099, 80 L.Ed.2d at 745; Schmerber v.

California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908, 919-20 (1966) (warrantless blood alcohol test reasonable where delay would cause loss of evidence); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989) (“destruction of the evidence by metabolism of alcohol in the blood provides an inherent exigency____”). The magistrate further concluded, however, that the officers’ actions exceeded the scope of the evidence preservation exigency.

We apply an objective standard to determine whether the action taken was appropriate for a person of reasonable caution given the facts known to the official at the time of entry, along with reasonable inferences drawn therefrom. State v. Barrett, 138 Idaho 290, 293, 62 P.3d 214, 217 (Ct.App.2003). The exigent circumstances exception does not apply where there is time to secure a warrant. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486, 498 (1978); State v. Worthington, 138 Idaho 470, 472, 65 P.3d 211, 213 (Ct.App.2002).

In Welsh, the police arrested the defendant for DUI within a half-hour from his reported drunken driving incident. This made it unlikely that Welsh “could cast substantial doubt on the validity of a blood or breath test by consuming additional alcohol upon arriving at his home.” Welsh, 466 U.S. at 763, 104 S.Ct. at 2105, 80 L.Ed.2d at 752 (White, J., dissenting). In the case at hand, the officers arrived promptly at Robinson’s home.

Officer Moore arrived minutes later, and entered the home to arrest Robinson only after she refused either to come outside or to allow the officers to perform field sobriety tests inside the home. The officers further testified regarding the impracticability of obtaining a warrant at such a late night hour, saying it ordinarily took several hours. Compare Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409, 414 (1970) (finding warrantless home entry unreasonable where practical to obtain warrant).

We conclude there were exigent circumstances given the serious penalty associated with the DUI offense and specific, articulable facts reasonably indicating imminent destruction of evidence, i.e., dissipation of blood-alcohol content. The officers’ response was appropriately tailored to the scope of the exigency. In line with Payton, therefore, the Fourth Amendment was not offended when officers immediately entered Robinson’s home with reasonable cause to prevent destruction of DUI-related evidence.

We need not decide and do not hold that law enforcement officers may enter a home without a warrant to effectuate an arrest in every misdemeanor case. See Welsh, 466 U.S. at 749 n. 11, 104 S.Ct. at 2097 n. 11, 80 L.Ed.2d at 743 n. 11. We hold merely that the police conduct here, under these circumstances, was reasonable as “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 336 (1977). IV.

CONCLUSION Because the Fourth Amendment permits a reasonably tailored warrantless entry into a residence upon coexistence of probable cause for a jailable offense and exigent circumstances, the officers lawfully entered Robinson’s home without a warrant to prevent destruction of blood alcohol evidence. Accordingly, the district court’s order affirming the magistrate’s order granting the motion to suppress is reversed. Judge LANSING concurs. .

The magistrate also granted the state’s motion to stay the jury trial pending the outcome on appeal: . “The right of the people to be secure in their ... houses ... against unreasonable searches and seizures, shall not be violated....” U.S. Const, amend. IV.