               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43751

STATE OF IDAHO,                                 ) 2016 Opinion No. 75
                                                )
       Plaintiff-Respondent,                    ) Filed: November 16, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
OSVALDO GUADALUPE ARENAS,                       )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
       County. Hon. Robert J. Elgee, District Judge.

       Order denying motion to suppress and judgment of conviction, reversed in part,
       affirmed in part, and case remanded.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Jenny C.
       Swinford, Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Osvaldo Guadalupe Arenas appeals from his judgment of conviction for possession of a
controlled substance, methamphetamine, arguing the district court erred when it denied, in part,
Arenas’ motion to suppress the statement he made to officers during a search incident to arrest.
Arenas argues the district court erred because Arenas made the statement during a custodial
interrogation without the requisite Miranda 1 warnings. The State argues Arenas’ claim is moot.
We hold Arenas’ claim is not moot, and Arenas was subject to custodial interrogation in
violation of his Miranda rights. We reverse in part and affirm in part the order denying the
motion to suppress and remand the case to the district court for further proceedings consistent
with this opinion.



1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                1
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       During a traffic stop, an officer discovered an outstanding arrest warrant for Arenas. At
that time, a second officer arrived on the scene. The first officer informed Arenas of the arrest
warrant, requested Arenas exit the vehicle, and placed Arenas under arrest pursuant to the
warrant. The officer asked Arenas if he had anything on him. Arenas responded, “No.” The
officer handcuffed Arenas and patted him down. The officer testified that during the pat down
he felt a “familiar object” in Arenas’ pocket, and the officer said, “I thought you had nothing on
you, dude.” Arenas responded that the object was a “meth pipe.” The officer retrieved the pipe
from Arenas’ pocket, placed Arenas in the back of the patrol vehicle, and proceeded to search
Arenas’ vehicle where the officer found paraphernalia and methamphetamine. The second
officer testified he gave Arenas his Miranda rights and informed Arenas that if he brought drugs
into jail, he would be charged with another felony. Arenas admitted to having methamphetamine
tucked inside his waistline.
       The State charged Arenas with felony possession of methamphetamine, Idaho Code
Section 37-2732(c)(1), and misdemeanor possession of paraphernalia, I.C. § 37-2734A. Arenas
moved to suppress evidence, arguing: (1) his initial detention was illegal; (2) the search of his
person and vehicle was not sufficiently attenuated from the illegal stop; (3) his statement to the
officer that the object in his pocket was a “meth pipe” and the physical evidence of the pipe itself
are inadmissible under Miranda; and (4) the search of his vehicle was unlawful.
       After a hearing, the district court granted Arenas’ motion to suppress in part and denied it
in part.   The district court’s findings and conclusions were as follows.        The district court
concluded there was no reasonable suspicion for the stop. However, the district court found the
valid arrest warrant was a sufficient intervening circumstance to break the causal chain and
sufficiently dissipate the taint of the illegal stop. Next, the district court found Arenas was not
given Miranda warnings prior to the officer’s statement: “I thought you had nothing on you,
dude.” However, the district court did not suppress Arenas’ statement that the object in his
pocket was a “meth pipe” and the physical evidence of the pipe itself, reasoning the pipe was
discovered during the course of the search incident to arrest and the officer’s statement was not
“any more likely to elicit an incriminating response than if the officer had said ‘I know what that
is.’” Finally, the district court suppressed any evidence found during the search of Arenas’

                                                 2
vehicle because the search was “not justified based on the warrant exception to a search incident
to arrest, or any exception under Gant.” 2
       Pursuant to a plea agreement, Arenas conditionally pleaded guilty to possession of a
controlled substance, I.C. § 37-2732(c)(1), reserving the right to appeal the district court’s partial
denial of Arenas’ motion to suppress. The district court imposed a five-year sentence, with three
years determinate, suspended the sentence, and placed Arenas on probation. Arenas 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).
                                                  III.
                                             ANALYSIS
       On appeal, Arenas challenges only the district court’s denial of the motion to suppress his
statements concerning the “meth pipe.”            Arenas asserts he was subject to a custodial
interrogation when he made the statement regarding the pipe. Consequently, he contends, the
statement should have been suppressed because he did not receive Miranda warnings prior to
making the statement.       The State argues Arenas’ statement concerning the “meth pipe” is
evidence only of the misdemeanor paraphernalia charge, and because Arenas did not plead guilty
to the paraphernalia charge, his claim is moot.
       We first address whether the issue is moot. It is not. A case becomes moot when the
issues presented are no longer live or the defendant lacks a legally cognizable interest in the
outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982); Bradshaw v. State, 120 Idaho 429, 432,
816 P.2d 986, 989 (1991). Even where a question is moot, there are three exceptions to the

2
       Arizona v. Gant, 556 U.S. 332 (2009).
                                                   3
mootness doctrine: (1) when there is the possibility of collateral legal consequences imposed on
the person raising the issue; (2) when the challenged conduct is likely to evade judicial review
and, thus, is capable of repetition; and (3) when an otherwise moot issue raises concerns of
substantial public interest. State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010). Here,
Arenas conditionally pleaded guilty to the felony offense and reserved the right to appeal his
motion to suppress. Should Arenas prevail on appeal, he has the right to withdraw his guilty
plea. See Idaho Criminal Rule 11(a)(2). As such, Arenas has a legally cognizable interest in the
determination of the suppression issue because it necessarily implicates the validity of his guilty
plea. The issue, therefore, is not moot.
       Although Arenas contends that both constitutions were violated, he provides no cogent
reason why Article I, Section 17 of the Idaho Constitution should be applied differently than the
Fourth Amendment to the United States Constitution in this case. Therefore, the Court will rely
on judicial interpretation of the Fourth Amendment in its analysis of Arenas’ claims. See State v.
Schaffer, 133 Idaho 126, 130, 982 P.2d 961, 965 (Ct. App. 1999).
       The requirement for Miranda warnings is 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 v. Arizona, 384 U.S. 436, 478 (1966). 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.
       A court must consider all of the circumstances surrounding the interrogation. Stansbury,
511 U.S. at 322; State v. James, 148 Idaho 574, 577, 225 P.3d 1169, 1172 (2010). Factors to be
considered may include the degree of restraint on the person’s freedom of movement (including
whether the person is placed in handcuffs), whether the subject is informed that the detention is
more than temporary, the location and visibility of the interrogation, whether other individuals

                                                4
were present, the number of questions asked, the duration of the interrogation or detention, the
time of the interrogation, the number of officers present, the number of officers involved in the
interrogation, the conduct of the officers, and the nature and manner of the questioning. See
Berkemer, 468 U.S. at 441-42; James, 148 Idaho at 577-78, 225 P.3d at 1172-73. The burden of
showing custody rests on the defendant seeking to exclude evidence based on a failure to
administer Miranda warnings. James, 148 Idaho at 577, 225 P.3d at 1172.
          The district court correctly found Arenas was under arrest at the time he made the
statement regarding the pipe to the officer because Arenas was in handcuffs and was told he was
under arrest. The issue, therefore, is whether the officer’s statement was an interrogation in
violation of Arenas’ Miranda rights. Arenas argues the officer’s statement, “I thought you had
nothing on you, dude” was an interrogation because it was directed at Arenas and in reaction to
Arenas’ earlier claims that he had nothing on him. The State argues the officer’s statement was
made after the discovery and identification of the pipe and was not reasonably likely to elicit an
incriminating response because the officer did not directly or indirectly ask Arenas to identify the
object.
          In Miranda, the United States Supreme Court stated that by “custodial interrogation, we
mean questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384
U.S. at 444. The term “interrogation” was later refined in Rhode Island v. Innis, 446 U.S. 291
(1980) to refer “not only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301-02. “[T]he
definition of interrogation can extend only to words or actions on the part of police officers that
they should have known were reasonably likely to elicit an incriminating response.” Id. at 302.
In Innis, the United States Supreme Court held the dialogue of two officers in the presence of the
defendant regarding the possibility that a handicapped child would find the gun the defendant
had used in committing a murder and a robbery did not constitute interrogation because the
dialogue invited no response from the defendant. Id. at 291-92.
          Unlike the officers’ dialogue in Innis, the officer’s statement in this case was directed at
Arenas and was in reference to their earlier conversation. Upon arresting Arenas, the officer
asked Arenas if he had anything on him and Arenas responded, “No.” The officer conducted a

                                                   5
search incident to arrest and testified he “felt a familiar object” in Arenas’ pant pocket. Before
removing the object from Arenas’ pocket, the officer said, “I thought you said you had nothing
on you, dude.” Arenas responded by saying the object was a “meth pipe.” The officer then
removed the object and confirmed it was a pipe. Because Arenas previously denied having
anything on his person, the officer should have known that his statement was reasonably likely to
elicit an incriminating response from Arenas.         Accordingly, the district court erred in not
suppressing Arenas’ statement because the statement was obtained in violation of Miranda.
                                                IV.
                                         CONCLUSION
       For the reasons set forth above, the district court correctly denied Arenas’ claims in his
motion to suppress with the exception of Arenas’ statement regarding the pipe. As to that
statement, because Arenas was subjected to custodial interrogation in violation of his Miranda
rights, we reverse the district court’s denial. We therefore, affirm in part and reverse in part the
order denying the motion to suppress, and remand the case to the district court for proceedings
consistent with this opinion.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




                                                 6
