               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44479

In the Interest of: JOHN DOE (2016-39)         )
                                               )
STATE OF IDAHO,                                ) 2017 Opinion No. 63
                                               )
       Petitioner-Appellant,                   ) Filed: November 20, 2017
                                               )
v.                                             ) Karel A. Lehrman, Clerk
                                               )
JOHN DOE (2016-39),                            )
                                               )
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. William
       Harrigfeld, Magistrate.

       Order of the district court affirming magistrate’s order granting motion to
       suppress, affirmed.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for appellant.

       Dowdy Law Office; J. Scott Dowdy, Kuna, for respondent.

                   ________________________________________________

GRATTON, Chief Judge
       The State appeals from the district court’s appellate decision affirming the magistrate
court’s order granting John Doe’s motion to suppress statements Doe made to detectives during
the course of an investigation.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The following facts were addressed in the magistrate’s memorandum decision and order:
               On August 28, 2014, Detective Joe McCarthy (McCarthy) of BPD,
       interviewed [Doe] in connection with an investigation into potential lewd conduct
       with a minor that occurred on August 23, 2014. McCarthy interviewed [Doe] in
       his office at [the junior high school]. [Doe] was 14 years old at the time and a

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freshman at [the junior high school]. It is unclear from the report if the office
doors were closed, but [Doe] was alone in the officer [sic] with McCarthy.
McCarthy never indicated to [Doe] that he did not have to speak with him, nor
that [Doe] was free to leave at any time that he desired. In his report, McCarthy
indicates at the outset that he did not Mirandize [Doe] because he believed he was
a potential witness rather than a suspect in the alleged incident. McCarthy
indicated in his report that a portion of the interview with [Doe] was recorded;
however, discovery materials received by counseling [sic] did not include any
audio of McCarthy’s interview. Due to the lack of the actual recording, it is
impossible to determine neither the length of time that [Doe] was interviewed nor
the exact nature of the questioning.
        McCarthy asked [Doe] about the relationship between the alleged victim []
and [witness] due to the fact that [witness] was a suspect in the lewd conduct
incident. During questioning, [Doe] indicated that [victim] “came onto” him by
crawling in his lap and wanted to make out with him. McCarthy indicates that
[Doe] was a witness and so he “continued to ask about [victim’s] behavior
believing that he might talk about [victim] and [witness].” [Doe] proceeded to tell
McCarthy that he witnessed [victim] without her bra and shirt and that [victim]
again approached him. McCarthy asked [Doe] what he did and if he reciprocated
[victim]’s advances “believing that if he talked about actions he might talk about
[witness]. McCarthy states that [Doe] indicated that he kissed [victim] and that
she gave him a “hand job” while gesturing that he touched her chest. [Doe] then
added that [victim] gave him a “blow job” that lasted 3 to 5 seconds.
        At this point, McCarthy indicates that he stepped out of the room to call
Detective Angie Munson (Munson) and tell her about [Doe]’s disclosures.
McCarthy reports that he “returned to his office a short time later and [Doe] told
me that he had vaginal intercourse with [victim] for about 5 seconds when he
stopped because he noticed that she was not responding to him when he spoke
her.” McCarthy then states that [Doe] was sent back to class.
        After McCarthy’s interview, it was determined that the crime took place
outside Boise city limits and Detective Munson turned the investigation over to
Detective Matthew Buie (Buie) of the ACSO. During a briefing on August 28,
2014, where a number of detectives were present, Munson informed Buie of the
status of the investigation to that point. Munson indicated that [Doe] had
admitted to having sex with [victim] during an interview with McCarthy.
McCarthy arrived late to the briefing and informed Buie of the details of [Doe]’s
interview. McCarthy indicated “that he didn’t realize that [Doe] was a suspect
during his interview with him and did not provide him with Miranda rights.”
McCarthy further explained that he believed that [Doe] was only a possible
witness “until [Doe] admitted to having sexual contact with [victim].”
        Following the briefing, Buie interviewed [witness] on August 28, 2014 at
his house in an attempt to get more information about [Doe]’s sexual contact with
[victim]. At 18:31 Buie walked into the garage with [witness] and asked him if
anyone had sex with [victim]. [Witness] responded that no one was ever alone
with [victim] in the garage. Buie told [witness] that he knew [Doe] had sex with
[victim]. [Witness] then indicated that [victim] was “touchy touchy” with [Doe].

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       Buie then met with [witness]’s mother and got permission to interview him in the
       garage. At 18:39 Buie again interviewed [witness] in the garage and asked
       [witness] for more detailed information about what happened between [victim]
       and [Doe]. [Witness] stated that [victim] was trying to get [Doe] to do “stuff.”
       Buie wanted to clarify what “stuff’ meant and [witness] indicated that it meant
       “sex.”
                On August 29, 2014, Buie went to [the junior high school] to interview
       [Doe] again. They met in a conference room at the school with no one else
       present. Buie told [Doe] that he did not have to speak with him and he read [Doe]
       his Miranda rights. [Doe] indicated that he wanted his grandmother present
       during the interview but she did not answer her phone. [Doe] agreed to speak
       with Buie without his grandmother present. Buie then asked [Doe] to tell him
       what happened and allowed [Doe] to state his version of events without
       interruption or further questions. [Doe] indicated that he and [victim] went into
       the garage and started to do “stuff.” When [Doe] realized she was really drunk,
       he “stopped doing stuff with her.” [Doe] had never indicated to that point what
       “stuff’ he and [victim] were doing. Buie wanted to clarify the events [Doe]
       described because [Doe] was “talking really fast.” Buie asked a few follow up
       questions about when [victim] arrived and how much alcohol she had consumed.
       Buie then asked [Doe] how long after she started drinking that he ended up in the
       garage with [victim]. [Doe] stated that it was about 20 minutes later. Buie
       responded by asking “is that when you had sex with her?” [Doe] responded in the
       affirmative. Buie continued to question [Doe], leading him in to the acts that Buie
       was already aware of from McCarthy’s interview. Buie asked if [victim] rubbed
       [Doe]’s penis and he stated yes. Buie then asked if [Doe] put his penis into
       [victim]’s vagina and he stated yes. Buie asked how long his penis was inside
       [victim]’s vagina to which [Doe] responded 5 seconds. Buie responded with
       disbelief stating: “now I’m a guy and I’ve had sex and for me to leave, to do that
       for 5 or 10 seconds is probably darn near impossible.” Buie asked [Doe] if he had
       ejaculated and [Doe] stated he did not and that he had a condom. Sometime later
       in the interview, Buie reiterated [Doe]’s statement about the duration of the event
       by stating “the sex only lasts 10 seconds? You’ve got some serious self-control, if
       that is the case.” Eventually Buie ended the interview.
       Doe was charged with lewd and lascivious conduct with a minor, Idaho Code § 18-1508.
Doe moved to suppress the statements he made during both of the interviews with the detectives.
Following a hearing, the magistrate entered an order granting Doe’s motion to suppress. The
district court affirmed. The State timely appeals.
                                                II.
                                  STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho
Supreme Court. The Supreme Court reviews the magistrate record to determine whether there is

                                                 3
substantial and competent evidence to support the magistrate’s findings of fact and whether the
magistrate’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415,
224 P.3d 480, 482 (2009).      If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the
decision of the magistrate. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App.
2014). Rather, we are procedurally bound to affirm or reverse the decision of the district court.
Id.
       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
       The State argues that the district court incorrectly concluded that Doe’s statements in the
interview with the Ada County Sheriff’s Office (ACSO) detective were inadmissible as “fruit of
the poisonous tree” of the initial interview. On the motion to suppress, the magistrate first
determined that Miranda 1 warnings should have been given in the first interview, and therefore
suppressed the statements from that interview. In doing so, the magistrate noted the facts set
forth above, and in addition, noted that the BPD officer was in uniform, there was no indication
Doe had any prior experience with law enforcement, and was without adult support. The
magistrate also noted that the officer asked Doe if he and the victim “hooked up,” to which Doe
responded in the affirmative, leading the magistrate to determine that at that point Doe was a
suspect and should have been Mirandized. The district court, although quoting the magistrate’s
factual findings, turned to the motion to suppress hearing transcript to make numerous additional
factual findings. Ultimately, however, the district court held that under the totality of the

1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                 4
circumstances, the fourteen-year-old juvenile would have reasonably believed that his
submission to questioning was compulsory and that the setting was custodial, requiring Miranda
warnings. On appeal, the State does not directly challenge the determination that Miranda
warnings should have been given incident to the first interview and that suppression of
statements therein was appropriate.
       Instead, in this appeal, the State contends that the magistrate and district court erred in
determining that statements made in the second interview should be suppressed as “fruit of the
poisonous tree” of the first interview. In holding that the second interview was fruit of the
poisonous tree, the magistrate made no additional factual findings, but after citing to State v.
Radford, 134 Idaho 187, 194, 998 P.2d 80, 87 (2000), stated: “In questioning the juvenile,
Detective Buie used the information he obtained from Detective McCarthy. Therefore, Detective
Buie’s interview was sufficiently tainted to give rise to the doctrine of ‘fruit of the poisonous
tree.”’ The district court again turned to the motion to suppress hearing transcript to make
numerous additional findings of fact. Ultimately, the district court also looked to Radford, but
quoted as follows:
                “While the officers’ knowledge of [Doe’s] compelled statement may have
       initially led them to interview him, the statements he made to the officers during
       the [subsequent] interview . . . were the result of an intervening independent act of
       free will.” Radford, 134 Idaho at 194, 998 P.2d at 87 (also noting “after an
       accused has once [let] the cat out of the bag by confessing, no matter what the
       inducement, he is never thereafter free of the psychological and practical
       disadvantages of having confessed. He can never get the cat back in the bag. The
       secret is out for good. In such a sense, a later confession always may be looked
       upon as fruit of the first. But this Court has never gone so far as to hold that
       making a confession under circumstances which preclude its use, perpetually
       disables the confessor from making a usable one after those conditions have been
       removed.”).
                There is a gap in the analysis as to whether the taint of the first suppressed
       statements was sufficiently purged by the advice of rights given by Detective Buie
       in the second interview or whether that interview was an exploitation of the
       earlier interview without adequate steps to purge the taint. Radford, 134 Idaho at
       193, 998 P.2d at 86. At his age, the juvenile might well assume that there was no
       point in exercising his rights since he had already told a police officer what the
       girl had done and what he did in response. While that analysis is not articulated
       by the magistrate, it is apparent he made such an analysis to reach the decision.
       The issue was presented to the magistrate by the prosecution. Clearly the second
       interview exploited the information obtained in the first interview. The record is
       sufficient to reach the conclusion that adequate steps were not taken to purge the
       taint.

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       In Radford, incriminating statements involving an uncharged crime were admitted by
Radford in the course of a polygraph examination. Thereafter, officers used that compelled
information in a second interview of Radford wherein incriminating statements were again made.
Radford filed a motion to suppress the statements made to the officers in the second interview.
Radford argued that the subsequent statements made to law enforcement were the “fruit of the
poisonous tree” of the prior compelled statements. The Idaho Supreme Court determined that
Radford’s statements to law enforcement were not “fruit” of the earlier compelled statement
given in the polygraph examination:
               The United States Supreme Court has held the Fifth Amendment protects
       against the use of a witness’s compelled answers and “evidence derived
       therefrom” in any subsequent criminal trial. Lefkowitz v. Turley, 414 U.S. 70, 78
       (1973). Radford argues the June 4th statements are forbidden fruit of the
       compelled statements because the officers never would have questioned Radford
       about the crime had they not been informed of the substance of his compelled
       statements. However, the United States Supreme Court has stated that the test of
       whether subsequent evidence constitutes “fruit of the poisonous tree” is more than
       just a “but for” test. Wong Sun v. United States, 371 U.S. 471 (1963). In Wong
       Sun, the Court stated that:
               We need not hold that all evidence is “fruit of the poisonous tree” simply
               because it would not have come to light but for the illegal actions of the
               police. Rather, the more apt question in such a case 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.”
       Id. at 487-88. The question in the present case is not whether the officers would
       not have obtained Radford’s June 4th statements “but for” their knowledge of his
       compelled statement, but rather whether the June 4th statements were sufficiently
       an act of free will to purge the primary taint of the compelled statement.
Radford, 134 Idaho at 193-94, 998 P.2d at 86-87.
       Thus, under Wong Sun, the question is whether the evidence obtained in the second
interview was obtained by exploitation of the prior illegality or instead by means sufficiently
distinguishable to be purged of the primary taint. In Brown v. Illinois, 422 U.S. 590 (1975), the
Court held that in considering whether a confession was the product of a free will under Wong
Sun, the administration of Miranda warnings is an important factor but, by themselves, could not
be assumed to attenuate the taint of an unconstitutional arrest. Brown, 422 U.S. at 602-03. The
Brown Court noted that other factors to be considered include the temporal proximity of the



                                               6
police misconduct and the confession, the presence of intervening circumstances, and the
purpose and flagrancy of the official misconduct. Id. at 603-04.
        As noted, the district court concluded that the ACSO detective’s interview with Doe
exploited the BPD detective’s earlier interview with Doe, and that adequate steps were not taken
to purge the taint. The State relies on Oregon v. Elstad, 470 U.S. 298, 300-18 (1985) in support
of its assertion that the district court erred because the BPD detective’s failure to give Miranda
warnings at the initial interview does not taint future voluntary and Mirandized statements. The
Elstad Court held that a breach of Miranda does not necessarily mean a Fifth Amendment
violation has occurred.     Accordingly, “errors [ ] made by law enforcement officers in
administering the prophylactic Miranda procedures . . . should not breed the same irremediable
consequences as police infringement of the Fifth Amendment itself.” Elstad, 470 U.S. at 309.
The United States Supreme Court reasoned that:
        It is an unwarranted extension of Miranda to hold that a simple failure to
        administer the warnings, unaccompanied by any actual coercion or other
        circumstances calculated to undermine the suspect’s ability to exercise his free
        will, so taints the investigatory process that a subsequent voluntary and informed
        waiver is ineffective for some indeterminate period. Though Miranda requires
        that the unwarned admission must be suppressed, the admissibility of any
        subsequent statement should turn in these circumstances solely on whether it is
        knowingly and voluntarily made.
Id.
        [A]bsent deliberately coercive or improper tactics in obtaining the initial
        statement, the mere fact that a suspect has made an unwarned admission does not
        warrant a presumption of compulsion. A subsequent administration of Miranda
        warnings to a suspect who has given a voluntary but unwarned statement
        ordinarily should suffice to remove the conditions that precluded admission of the
        earlier statement. In such circumstances, the finder of fact may reasonably
        conclude that the suspect made a rational and intelligent choice whether to waive
        or invoke his rights.
Id. at 314.
        [T]here is no warrant for presuming coercive effect [with respect to the post-
        Miranda statement] where the suspect’s initial inculpatory statement, though
        technically in violation of Miranda, was voluntary.
Id. at 318. The Court concluded that “[w]e hold today that a suspect who has once responded to
unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” Id. at 318.


                                                7
        The State argues that the mere failure to administer Miranda warnings in the first
interview does not render the subsequent warned and voluntary statements inadmissible. The
State contends that under Elstad suppression is not required where, as here, there was but a mere
procedural error in failing to administer Miranda warnings. Further, the State asserts that in this
case the simple failure to administer Miranda warnings, unaccompanied by any actual coercion
or other circumstances calculated to undermine the suspect’s free will or deliberately coercive or
improper tactics in obtaining the initial statement, does not require suppression in accordance
with Elstad. Finally, the State contends that Doe’s initial statements were voluntary and because
Doe did not raise the issue of voluntariness below, the lower courts did not address it and Doe
cannot now make an argument that his initial statements to the BPD detective were involuntary.
        As an initial matter, we cannot agree that the failure to administer Miranda warnings in
the first interview was a “mere,” “simple,” or “procedural” error. The magistrate noted that at
the outset of the initial interview, the detective indicated that he believed that Doe was a
potential witness not a suspect and so did not administer Miranda warnings. However, the
magistrate appropriately determined that Doe was considered a suspect when the officer asked a
leading question about whether Doe and the victim “hooked up.” While we agree, it is apparent
from the magistrate’s findings that the officer did or should have known to Mirandize Doe much
earlier in the conversation, before incriminating statements were made, when Doe indicated
being together with the victim on the night in question, and that Doe stated the victim wanted to
make out and then approached him without a shirt or bra.            Yet, the detective continued
questioning until incriminating statements were made. After obtaining incriminating statements,
the detective left the room and called another detective to relay the disclosures.           More
surprisingly, after the phone call to the other detective, the detective did not Mirandize the
fourteen-year-old student, but returned to the room and obtained more incriminating statements.
These circumstances were either calculated to undermine the suspect’s free will or crossed the
line into improper tactics. 2


2
        The State acknowledges that in Missouri v. Seibert, 542 U.S. 600, 604-616 (2004), the
Court held that an unwarned but voluntary statement could still render a future statement
inadmissible if the detective made a conscious decision to employ a “question-first” strategy to
withhold Miranda warnings for the purpose of soliciting incriminating statements. The State
argues that in this case there is no indication such a strategy was employed. However, it is
difficult to conceive just what the strategy was after receiving incriminating statements, taking a
                                                8
       Next we turn to the question of whether the evidence obtained in the second interview
was obtained by exploitation of that illegality. It was. This situation went beyond the notion of
simply “but for” the earlier disclosures the subsequent disclosures would not have been obtained.
Certainly, prior to the second interview, the detective was advised of the details of the initial
disclosures. One day later, the second detective Mirandized and questioned Doe. The magistrate
noted that Doe went only so far as to say that he and the victim started to do “stuff” and when he
realized she was drunk, he “stopped doing stuff with her.” He did not identify what “stuff”
meant. After asking about drinking, the detective asked “is that when you had sex with her?” It
was quite clear that the detective knew of the disclosures made to another detective just the day
before. This is further evidenced by the magistrate’s finding that “Buie continued to question
[Doe], leading him in to the acts that Buie was already aware of from McCarthy’s interview.”
The circumstances here matter in the exploitation analysis.        This is a fourteen year old,
unaccompanied by a supportive adult, with no indication of any prior experience with law
enforcement, being questioned by a detective one day after making disclosures in such a manner
as to be clear that the detective was aware of the prior disclosures. It seems no stretch, as the
district court concluded, that “At his age the juvenile might well assume that there was no point
in exercising his rights since he had already told a police officer what the girl had done and what
he did in response.”
       Finally, we turn to the factors outlined in Brown, including the temporal proximity of the
police misconduct and the confession, the presence of intervening circumstances, and the
purpose and flagrancy of the official misconduct, to determine if the interviews are sufficiently
distinguishable so as to be purged of the primary taint. As to temporal proximity, the interviews
were a mere day apart. The only material intervening circumstance is that the second interview
was conducted by a second detective who, however, was fully cognizant of the initial
disclosures. Regarding misconduct, as noted above, the failure to Mirandize Doe at any point in
the initial interview is at best troubling and at worst calculated. The evidence to which instant
objection is made was obtained in a manner insufficiently distinguishable of the initial illegality
to be purged of the primary taint.




break to call another officer, and then returning, without Miranda warnings, to obtain yet more
incriminating statements.
                                                9
       The district court did not err in finding that the second interview exploited the
information obtained in the first interview. The record is sufficient to reach the conclusion that
adequate steps were not taken to purge the taint.
                                               IV.
                                         CONCLUSION
       The magistrate’s decision is supported by the applicable law. The district court’s order
affirming the magistrate’s decision to grant Doe’s motion to suppress is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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