Kilby cites the United States Supreme Court's holding in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) in support of his challenge. In Bumper, the owner of a house consented to a search when she was told by officers that they had a search warrant. The prosecution then relied upon the search being valid based upon the consent given. The United States Supreme Court reversed the conviction, holding:
A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid․
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful coercion. Where there is coercion there cannot be consent.
Bumper, 391 U.S. at 549-50, 88 S.Ct. at 1792 (footnote omitted). Kilby claims the facts of his case concerning the consent issue are much more compelling than those stated in Bumper.
Our standard for reviewing a trial court's ruling on a suppression motion is bifurcated. Although we accept the trial court's findings of fact where supported by substantial evidence, we freely review the application of constitutional principles to the facts as found. State v. Birkla, 126 Idaho 498, 501, 887 P.2d 43, 46 (Ct.App.1994); State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990).
A warrantless search may be conducted where there has been a voluntary consent to search. “The burden is upon the state to show, by a preponderance of the evidence, that a defendant's ․ consent to search was given freely and voluntarily․ [T]he voluntariness of a consent to search must be determined from the totality of the circumstances.” State v. Aitken, 121 Idaho 783, 784, 828 P.2d 346, 347 (Ct.App.1992) (citations omitted). The fact that the defendant is in custody “has never been enough in itself to demonstrate a coerced ․ consent to search.” Aitken, 121 Idaho at 785, 828 P.2d at 348, quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976).
As found by the district court, Kilby lacked standing to challenge the initial search of his room at the Mountain Home residence and the evidence seized. Because Kilby lacked standing to challenge the initial search, there remains no issue as to whether his subsequent consent purged the search warrant's deficiency. We will address, however, whether Kilby's consent for the two subsequent searches was given freely and voluntarily.
Detective Barry interviewed Kilby after Kilby had been arrested on one count of lewd conduct with a minor. This charge stemmed from alleged sexual contact Kilby had with a four-year-old child at the day care. During the course of this interview, detective Barry commented that he had seized certain materials from Kilby's room in Mountain Home and that he wanted to search Kilby's residence at King Hill and Kilby's vehicle. Detective Barry also told Kilby that several of the children at the Mountain Home residence reported seeing pictures of naked children in Kilby's possession.
During this interview, detective Barry repeatedly told Kilby that Kilby did not have to consent to a search. Detective Barry never told Kilby that the detective had a search warrant or that he had the right to search Kilby's residence at King Hill and his vehicle. In fact, detective Barry told Kilby that if Kilby chose not to consent, detective Barry would have to obtain a search warrant. The facts of this case are therefore distinguishable from Bumper, where the officers falsely or erroneously stated that they had a legitimate right to search the area where the incriminating evidence was discovered. Accordingly, under the totality of the circumstances, we conclude that Kilby's consent to search his residence at King Hill and his vehicle at the Mountain Home residence was freely and voluntarily given.