               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 36509

STATE OF IDAHO,                                  )      2010 Unpublished Opinion No. 636
                                                 )
       Plaintiff-Respondent,                     )      Filed: September 9, 2010
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
SCOTT NICHOLSON,                                 )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
       County. Hon. R. Barry Wood, District Judge.

       Judgment of conviction for possession of a controlled substance, with an
       enhancement for being a persistent violator, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       Scott Nicholson appeals from his judgment of conviction for possession of a controlled
substance. Specifically, Nicholson challenges the district court’s order denying his motion to
suppress. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Officers stopped Nicholson’s vehicle for failure to display a front license plate. I.C. § 49-
428(1). After initiating the stop, the officers requested that Nicholson exit the vehicle. The
officers informed Nicholson why he had been stopped and asked for his identification, which he
was unable to produce. The officers requested verbal identification and then directed Nicholson
to stand at the top of a driveway approximately twenty to thirty feet away from his car. While
one officer was requesting information regarding Nicholson’s identification and car registration
from dispatch, another officer moved up the driveway and began questioning Nicholson. At no

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point during this questioning was Nicholson read his Miranda1 rights. Approximately two
minutes into the questioning, the officer asked Nicholson whether there were any guns, drugs, or
knives in the vehicle. Nicholson told the officer that there was a marijuana pipe in the vehicle.
Based on Nicholson’s statement, the officers conducted a search of the vehicle and found, among
other things, a green leafy substance they suspected to be marijuana. Immediately thereafter,
Nicholson was arrested. Approximately five minutes elapsed between when the officers initiated
the traffic stop and when the search of the vehicle was conducted. The entire stop, ending with
Nicholson’s arrest, took eighteen minutes.            Upon a search of Nicholson at the jail,
methamphetamine was also discovered.             Nicholson was charged with possession of
methamphetamine, a felony under I.C. § 37-2732(c)(1), with an enhancement for being a
persistent violator under I.C. § 19-2514.
       Nicholson filed a motion to suppress, arguing that his Fourth Amendment right against
unreasonable search and seizure was violated because the officers impermissibly expanded the
scope of the investigative stop. Nicholson also argued that his Miranda rights were violated
because, when he was moved away from his vehicle onto the driveway, he was in custody for
purposes of Miranda but the officers did not read him his Miranda rights prior to questioning
him. The district court denied Nicholson’s motion to suppress. Nicholson entered a guilty plea
reserving his right to appeal the denial of his motion to suppress. The district court sentenced
Nicholson to a unified term of eighteen years, with a minimum period of confinement of five
years. Nicholson appeals.
                                                II.
                                            ANALYSIS
       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,



1
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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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).
A.     Scope of the Investigative Stop
       Nicholson argues that his Fourth Amendment right against unreasonable search and
seizure was violated because the scope of the traffic stop was improperly expanded beyond the
initial purpose of the stop. The determination of whether an investigative detention is reasonable
requires a dual inquiry--whether the officer’s action was justified at its inception and whether it
was reasonably related in scope to the circumstances which justified the interference in the first
place. State v. Roe, 140 Idaho 176, 181, 90 P.3d 926, 931 (Ct. App. 2004); State v. Parkinson,
135 Idaho 357, 361, 17 P.3d 301, 305 (Ct. App. 2000). An investigative detention is permissible
if it is based upon specific articulable facts which justify suspicion that the detained person is,
has been, or is about to be engaged in criminal activity. State v. Sheldon, 139 Idaho 980, 983, 88
P.3d 1220, 1223 (Ct. App. 2003). Here, Nicholson does not contest the basis for the stop. Thus,
we address only whether the officers impermissibly expanded the scope of the stop by moving
Nicholson away from his vehicle and by questioning him on matters not directly related to the
purpose of the stop.
       An investigative detention must be temporary and last no longer than necessary to
effectuate the purpose of the stop. Roe, 140 Idaho at 181, 90 P.3d at 931; State v. Gutierrez, 137
Idaho 647, 651, 51 P.3d 461, 465 (Ct. App. 2002). Where a person is detained, the scope of
detention must be carefully tailored to its underlying justification. Roe, 140 Idaho at 181, 90
P.3d at 931; Parkinson, 135 Idaho at 361, 17 P.3d at 305. In this regard, we must focus on the
intensity of the detention, as well as its duration. Roe, 140 Idaho at 181, 90 P.3d at 931. The
scope of the intrusion permitted will vary to some extent with the particular facts and
circumstances of each case. Roe, 140 Idaho at 181, 90 P.3d at 931; Parkinson, 135 Idaho at 361,
17 P.3d at 305. Brief inquiries not otherwise related to the initial purpose of the stop do not
necessarily violate a detainee’s Fourth Amendment rights. Roe, 140 Idaho at 181, 90 P.3d at
931.
       Although an investigative detention must ordinarily last no longer than is necessary to
effectuate the purpose of the stop, a detention initiated for one investigative purpose may
disclose suspicious circumstances that justify expanding the investigation to other possible
crimes. State v. Chapman, 146 Idaho 346, 350, 194 P.3d 550, 554 (Ct. App. 2008). An officer’s


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observations, general inquiries, and events succeeding the stop may, and often do, give rise to
legitimate reasons for particularized lines of inquiry and further investigation by an officer. State
v. Meyers, 118 Idaho 608, 613, 798 P.2d 453, 458 (Ct. App. 1990). Here, the district court
properly focused on the events and time between the initial traffic stop and when Nicholson
admitted to having a marijuana pipe in the vehicle. The district court correctly reasoned that
Nicholson’s statement about the marijuana pipe created a lawful basis for expanding the scope of
the traffic stop to include a search of the vehicle.        Therefore, the question presented by
Nicholson’s motion to suppress was whether the scope of the stop was impermissibly expanded
in the approximately five minutes that elapsed between the initial stop and when Nicholson
stated there was a marijuana pipe in the car.
       The district court first considered whether removing Nicholson from his vehicle and
asking him to step twenty to thirty feet up a driveway was beyond the scope of an ordinary
investigative stop. It concluded that it was not. In Parkinson, this Court held that requesting the
driver to sit in a patrol car was reasonable and did not impermissibly expand the scope of the
investigative stop. Parkinson, 135 Idaho at 363, 17 P.3d at 307. Under Parkinson, moving a
driver away from a vehicle, by itself, does not create an impermissible expansion of the traffic
stop. Id. Therefore, the district court did not err in finding that moving Nicholson twenty to
thirty feet away from the car was not an impermissible expansion of the scope of the stop.
       The district court also found that the questions put to Nicholson during the time between
the initial traffic stop and his statement that there was a marijuana pipe in the car did not
impermissibly expand the scope of the traffic stop. In Parkinson, a driver was stopped for a
cracked windshield and exceeding the speed limit. Officers asked the driver a series of questions
about whether there was any alcohol, drugs, or weapons in the vehicle. Id. This Court held that
such brief, general inquiries, which were not otherwise related to the initial purpose of the traffic
stop, did not impermissibly expand the scope of the stop. Id. Here, the district court found the
officer’s questions were general in nature. The officer asked Nicholson to account for his
movements during the evening, about his past criminal history, and whether there were any
drugs, alcohol, or knives in the vehicle. These questions were of the same general nature as the
inquiries made in Parkinson. In addition, the district court found that the duration of the
questioning lasted for less than three minutes. During the three minutes that Nicholson was
being questioned, another officer was verifying Nicholson’s identity and vehicle registration with


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dispatch. Given the short duration and nature of the questioning, the district court did not err in
finding that such generalized questions did not impermissibly expand the scope of the traffic
stop.
B.      Miranda Warnings
        Nicholson also argues that, when he was moved away from his vehicle onto the
driveway, he was in custody for purposes of Miranda and that, consequently, the officers should
have administered Miranda warnings before initiating their questioning. Miranda warnings are
triggered by custodial interrogation. State v. Medrano, 123 Idaho 114, 117, 844 P.2d 1364, 1367
(Ct. App. 1992).    The United States Supreme Court equated custody with a person being
deprived of his or her freedom by the authorities in any significant way. Miranda, 384 U.S. at
478. This test has evolved to define custody as a situation where a person’s freedom of action is
curtailed to a degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440
(1984); State v. Myers, 118 Idaho 608, 610, 798 P.2d 453, 455 (Ct. App. 1990). The “initial
determination of custody depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the person being questioned.”
Stansbury v. California, 511 U.S. 318, 323 (1994). To determine if a suspect is in custody, the
only relevant inquiry is how a reasonable person in the suspect’s position would have understood
his or her situation. Berkemer, 468 U.S. at 442; Myers, 118 Idaho at 611, 798 P.2d at 456.
        In order to make this determination, we must review the totality of the circumstances
presented in the record. State v. Tapp, 136 Idaho 354, 363, 33 P.3d 828, 837 (Ct. App. 2001). In
evaluating the totality of the circumstances, the Supreme Court has determined that the following
factors are relevant: the location, timing, and length of the interview; the nature and tone of the
questioning; whether the defendant came to the place of questioning voluntarily; the use of
physical contact or physical restraint; and the demeanor of all of the key players, both during the
interview and in any proceedings held in court. Thompson v. Keohane, 516 U.S. 99, 118 (1995).
        The district court held that Nicholson was not in custody because a reasonable person in
Nicholson’s position would not have understood that he or she was under formal arrest. The
district court found that the calm manner and tone of the officer’s questions and Nicholson’s
answers and the length of the questioning (approximately three minutes) would not have lead
Nicholson to believe he was under arrest. The district court particularly noted that Nicholson
was not the titled owner of the vehicle and had not produced a valid identification. The district


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court found that a reasonable person in Nicholson’s circumstances would have believed the short
delay was because the police were contacting dispatch for information about his identity and not
because he was under arrest. The district court analyzed all the factors relevant to determining
whether Nicholson was in custody for purposes of Miranda, including considering the duration
of the questioning, the tone and demeanor of the officers and Nicholson, and whether a
reasonable person would have believed he or she was under arrest. Therefore, the district court
did not err when it determined that Nicholson was not in custody for the purposes of Miranda.
                                               III.
                                        CONCLUSION
       Moving Nicholson twenty to thirty feet away from his vehicle and posing general, basic
questions to him did not impermissibly expand the scope of the traffic stop and, therefore, did
not violate Nicholson’s right against unreasonable search and seizure under the Fourth
Amendment. In addition, when Nicholson was questioned by the officers on the driveway, he
was not in custody for Miranda purposes and, consequently, his Miranda rights were not
violated. Therefore, the district court did not err by denying Nicholson’s motion to suppress.
Accordingly, Nicholson’s judgment of conviction for possession of a controlled substance, with
an enhancement for being a persistent violator, is affirmed.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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