               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 38298

STATE OF IDAHO,                                 )     2012 Unpublished Opinion No. 333
                                                )
       Plaintiff-Respondent,                    )     Filed: January 24, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
LEROY STEVEN WILSKE,                            )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge.

       Judgment of conviction for felony driving under the influence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Elizabeth Ann Allred, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Leroy Steven Wilske appeals from his judgment of conviction entered upon his
conditional guilty plea to felony driving under the influence (DUI). For the reasons set forth
below, we affirm.
                                               I.
                                FACTS AND PROCEDURE
       Wilske attended a DUI Victims Panel (Panel) at the Coeur d’Alene offices of the Idaho
Transportation Department as a condition of probation for a prior DUI conviction. Officer Shane
Avriett, a participant in the Panel who was in uniform and armed, encountered Wilske in the
hallway near a restroom and smelled the strong odor of alcohol on Wilske. Officer Avriett asked
Wilske if he had been drinking and Wilske admitted he had. Wilske claimed he did not drive
himself to the Panel and admitted he was on probation. Officer Avriett requested that Wilske
accompany him into a small classroom off the hallway and Wilske complied. Officer Avriett



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then asked Wilske to submit to a breath test, to which Wilske agreed. The test indicated Wilske
had consumed alcohol.
       Officer Avriett had the substance abuse council coordinator present at the Panel summon
an Idaho State Trooper and remained in the room with Wilske until Corporal Charles Robnett,
also in uniform and armed, arrived. Officer Avriett stood in the room with the coordinator while
Corporal Robnett questioned Wilske as to how he had gotten to the Panel. After initially stating
his roommate dropped him off, Wilske eventually admitted he had driven to the Panel after
Corporal Robnett asked if the roommate would confirm Wilske’s account if contacted. Wilske
then submitted to several field sobriety tests performed by Corporal Robnett in the classroom.
After failing the field sobriety tests, he was arrested for DUI and advised of his Miranda 1 rights.
       Wilske was charged with felony DUI, having been convicted of similar offenses twice
within the preceding ten years. Idaho Code §§ 18-8004, 18-8005. He filed a motion to suppress,
advancing several claims, including that he was subjected to custodial interrogation prior to
being advised of his Miranda rights, in contravention of his Fifth Amendment rights under the
United States Constitution. The district court denied the motion, concluding in regard to the
Miranda claim that Wilske had not been under arrest or the custodial equivalent when he was
questioned by law enforcement in the classroom. Wilske entered a conditional guilty plea to
felony DUI, preserving his right to appeal the denial of his suppression motion. Wilske now
appeals the denial of his motion to suppress.
                                                 II.
                                            ANALYSIS
       Wilske contends the district court erred in denying his motion to suppress statements
obtained in violation of his Fifth Amendment rights under the United States Constitution.
Specifically, he contends the district court erred in finding he was not in “custody” prior to being
given Miranda warnings.
       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

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



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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).
       When an individual is taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning, the privilege against
self-incrimination is jeopardized. Miranda v. Arizona, 384 U.S. 436, 478 (1966). Procedural
safeguards must be employed to protect the privilege, and unless other fully effective means are
adopted to notify the person of his right of silence and to assure the exercise of the right will be
scrupulously honored, the following measures are required: he must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an attorney; and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so desires. Id. at 478-79.
If a person is not properly given these warnings prior to answering a question in a custodial
interrogation, the statement is inadmissible. Id. at 479.
        Miranda warnings are only 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). It requires more than a circumstance where a suspect was not free to
leave. State v. Hurst, 151 Idaho 430, 436, 258 P.3d 950, 956 (Ct. App. 2011). 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




                                                 3
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 presence of other persons may also be
considered in the analysis. Hurst, 151 Idaho at 436, 258 P.3d at 956.
        Determining that Wilske was not in custody for the purposes of Miranda prior to being
advised of his rights, the district court stated:
        [T]his court is going to find that Mr. Wilske, through up until the time of his
        Miranda rights [being read], was not in custody for the purposes of Miranda, that
        the definition being his freedom of movement being impeded such that a
        reasonable person would associate it with a formal arrest. The Court is going to
        find that an investigation was going on. Mr. Wilske knew that an investigation
        was going on and that a reasonable person would not believe, under those
        circumstances, that they were under arrest.
                The contact with Mr. Wilske was brief in duration. The number of
        questions and the manner of questioning was not of an overbearing or coercive
        manner or demeanor of doing so. He was not taken to a secret place or a place
        where iron bars closed behind him. He was taken into a classroom and asked to
        go into a classroom where there was a window open. There were two officers
        present and a couple of civilians, but the Court does not find that to be
        overbearing circumstances.
                [H]e was not placed in cuffs. . . . [T]here is no appearance that [officers]
        put hands on him, led him by the arm into that room, or that he ever said can I use
        the bathroom, can I leave the room, can I get up and those requests were denied.
        He wasn’t impeded physically in that way. The conduct of the officers by all
        appearances to this Court was respectful and professional. They didn’t have to
        believe him that he had been dropped off, and in fact it turns out they were right
        not to believe him. They didn’t buy it, and it turned out to have been a falsehood.
        The conduct of the officers was not such that it elevated this contact into one that
        a reasonable person would associate with formal arrest.

        On appeal, Wilske contends the district court’s finding that he was not in custody is
clearly erroneous because he was “removed from a highly visible location to a far more private,
isolated, and secure location;” was asked the same questions by Corporal Robnett that he had
already been asked by Officer Avriett; was questioned by an armed officer while another armed
officer stood in the room “in order to better monitor him;” was “given the impression that
questioning and the detention would continue until he made an admission;” and was not given a

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specific timeframe for how long the officers were planning to keep him in the classroom. Upon
examination of the record, we conclude the district court did not err in finding Wilske was not in
custody for Miranda purposes because a reasonable person would not have associated the
circumstances with a formal arrest. The district court explicitly considered the factors relevant to
such an inquiry and came to a reasoned conclusion. Specifically, we agree that, as the district
court found, the location, timing, and duration of the questioning support a finding that Wilske
was not in custody.      The investigation was conducted at a venue that Wilske attended
voluntarily, during normal “business hours” for the Panel, and it occurred at the offices of the
Transportation Department, as opposed to law enforcement quarters. Additionally, the detention
lasted a relatively short time: Officer Avriett conducted the breath test, approximately ten
minutes passed while they waited for Corporal Robnett to arrive on the scene, and it took a
relatively short time until Wilske admitted to Corporal Robnett that he had driven to the Panel.
Although Wilske attempts to paint the classroom he was removed to as “private, isolated, and
secure,” the record is clear that the classroom was mere feet away from the room in which the
Panel participants were located and the door, alternately open and closed during the relevant
period, had a window. Further, Wilske entered the classroom voluntarily upon being asked by
Officer Avriett. It is clear from the record that the purpose of moving to the classroom was not
to restrict Wilske’s movement, but to avoid creating a “scene” in front of the Panel participants.
       In any case, that questioning occurs in a somewhat isolated room, even when that room is
in a police station, does not establish the setting was custodial. For example, in State v. Birkla,
126 Idaho 498, 887 P.2d 43 (Ct. App. 1994), the defendant was asked to accompany an officer to
the police station to answer questions concerning criminal allegations. Once at the station, the
defendant was questioned in an interview room by a single detective. Birkla later testified the
door was locked and he was told he could not use the restroom or smoke or drink in the room;
the detective testified the door was not locked and he told Birkla he was free to leave. With little
discussion of the issue, this Court ultimately concluded the conduct surrounding Birkla’s
questioning did not amount to custody requiring Miranda warnings, even where it was
undisputed that Birkla had been questioned in a room, alone with the detective, with the door
closed. Id. at 501-02, 887 P.2d at 46-47.
       In addition, the record supports the district court’s findings that the nature and tone of the
questioning, as well as the demeanor of the participants, was largely benign--specifically, that the


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nature of the questioning was not overbearing or coercive and was relatively brief, and the
conduct of the officers was respectful and professional and did not escalate the situation to the
point of being custodial. Wilske does not dispute these findings on appeal. Further, as the
district court found, there was no use of physical force or handcuffs, and there was no indication
Wilske was ever impeded physically in that he was prohibited from standing and/or leaving the
room upon his request. See Hurst, 151 Idaho at 436-38, 258 P.3d at 956-58 (in holding that the
defendant was not in custody for purposes of Miranda, the Court noted the detective had not
touched, handcuffed, or otherwise physically restrained Hurst and the tone of the conversation at
Hurst’s workplace was relaxed, informal, and brief, in spite of the fact Hurst was a primary
suspect and the detective, unbeknownst to Hurst, was prepared to arrest Hurst if he did not
comply). Cf. State v. Frank, 133 Idaho 364, 369-70, 986 P.2d 1030, 1035-36 (Ct. App. 1999)
(holding the defendant was in custody where, during the full course of the investigation, the
defendant was handcuffed in the back of a police vehicle--a curtailment of his freedom to a
degree associated with formal arrest). Nor is there evidence Wilske was ever told that he could
not leave, that he was under arrest, or that he was ever threatened with arrest.
       Additionally, at least one non-law enforcement officer--in this case two women
associated with the Panel--was present during various portions of the interview. In short, this
was not the type of interrogation conducted in a “police-dominated atmosphere” contemplated by
Miranda. State v. Massee, 132 Idaho 163, 165, 968 P.2d 258, 260 (Ct. App. 1998) (quoting
Miranda, 384 U.S. at 445). Rather, it is more akin the interrogation in Massee, where the
defendant was told to sit on his living room couch while a probation officer completed a search.
Although a significant factor in Massee, that the interrogation occurred at the defendant’s house,
is not present here, there are remaining relevant factors to our inquiry. Specifically, we noted in
Massee that, like in the present situation, the defendant was not handcuffed, was not told he was
under arrest or would be arrested, no police weapons were trained on him, and there was no
evidence of any overbearing interrogation by the law enforcement officers present. Massee, 132
Idaho at 165, 968 P.2d at 260. Upon these facts, among others, we concluded Massee’s freedom
was not restricted to a degree associated with formal arrest. Id. at 165-66, 968 P.2d at 260-61.
       Wilske’s contention that the fact two uniformed, armed officers were present contributed
to a custodial setting is not persuasive. In Hurst, 151 Idaho 430, 258 P.3d 950, the defendant
made a similar argument, pointing out the detective in the case was wearing a badge and carrying


                                                 6
a firearm, and their conversation had taken place within sight of a marked police cruiser--all of
which, he argued, contributed to his being in custody for Miranda purposes. We noted, however,
that these factors exist in most citizen/police encounters and, thus, carry little weight in assessing
whether an individual would reasonably believe himself to be in custody. Id. at 436-37, 258 P.3d
at 956-57. In addition, the presence of two officers is not, in itself, particularly indicative of
police domination. In Meyers, 118 Idaho 608, 798 P.2d 453, this Court discussed the reasoning
behind the rule that routine traffic stops are not generally considered custodial for Miranda
purposes given that in regard to the level of “police dominat[ion]” of such stops, the detained
motorist is typically confronted by only one or at most two policemen. Id. at 611, 798 P.2d at
456.   By contrast in Meyers, four police officers responded in four different patrol vehicles to
the defendant’s traffic stop, leading us to conclude that a reasonable person in Meyers’ position
could conclude such excessive “police domination” deprived him of his freedom of movement in
a significant way. Id. Such a show of police force was not present in this case.
       Wilske also argues the fact Corporal Robnett asked him the same questions as were
already asked by Officer Avriett and focused on obtaining Wilske’s admission to having driven
to the Panel under the influence somehow contributed to a custodial setting. However, as the
State points out, the mere fact the officers did not immediately accept Wilske’s assertion that he
had not driven to the Panel, but continued to, in what the district court found to be a relatively
polite and non-overbearing manner, 2 question him on this point, does not render the encounter
custodial such that it is indicative of an arrest. To the contrary, probing for the truth of a
suspect’s statement is consistent with an investigative stop--the purpose of which is to
investigate whether wrong-doing occurred. In addition, to the extent this argument implicitly
encompasses a contention that the fact officers suspected him of a crime necessarily contributed
to a custodial setting, such is not the case. Again, the defendant in Hurst made a similar
argument, contending he was in custody because it was clear from the detective’s statements the
detective had already investigated Hurst and considered him a suspect regarding the pertinent


2
       As the district court recognized when denying Wilske’s motion to suppress, Wilske’s
testimony indicated a higher level of authority being shown by the officers than the officers
themselves testified to. However, the district court is charged with making credibility
determinations and was entitled to give more credence to the officers’ accounts. See State v.
Flowers, 131 Idaho 205, 207, 953 P.2d 645, 647 (Ct. App. 1998).


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criminal allegations. We noted that while relevant, this factor is not dispositive. Hurst, 151
Idaho at 437, 258 P.3d at 957. As stated by the United States Supreme Court in Stansbury, 511
U.S. at 325:
               An officer’s knowledge or beliefs may bear upon the custody issue if they
       are conveyed, by word or deed, to the individual being questioned. Those beliefs
       are relevant only to the extent they would affect how a reasonable person in the
       position of the individual being questioned would gauge the breadth of his or her
       “freedom of action.” Even a clear statement from an officer that the person under
       interrogation is a prime suspect is not, in itself, dispositive of the custody issue,
       for some suspects are free to come and go until the police decide to make an
       arrest. The weight and pertinence of any communications regarding the officer’s
       degree of suspicion will depend upon the facts and circumstances of the particular
       case. In sum, an officer’s views concerning the nature of an interrogation, or
       beliefs concerning the potential culpability of the individual being questioned,
       may be one among many factors that bear upon the assessment whether that
       individual was in custody, but only if the officer’s views or beliefs were somehow
       manifested to the individual under interrogation and would have affected how a
       reasonable person in that position would perceive his or her freedom to leave.

(Citations omitted.)
       Overall, the circumstances here are no more coercive than those present in State v.
Osborne, 130 Idaho 365, 370, 941 P.2d 337, 342 (Ct. App. 1997), where we concluded Osborne
was not in custody for Miranda purposes. There, Osborne was picked up at his residence by a
police officer and taken to a police station for questioning, but was never told he could not leave.
On appeal, Osborne argued he was in custody during the questioning because he was picked up
at his residence by a man he knew was a police officer, taken to a police station, escorted into the
police station through a locked door, questioned for up to two hours and forty minutes,
interviewed by two officers, and was unaware of why he was there. However, we noted officers
testified Osborne voluntarily agreed to ride with the officer to the police station and was not
intimidated into doing so, the questioning lasted only approximately an hour, Osborne was never
told he was under arrest or could not leave, Osborne never asked to leave, there were other exits
available to Osborne besides the locked door he had entered, and Osborne was returned home
after the questioning. Id. at 369-370, 941 P.2d at 341-42. Likewise here, as we reiterated above,
Wilske voluntarily entered the classroom, was interviewed by only two officers (but only one at
a time), and was not told he was under arrest or could not leave. Further, there is no indication
the door was locked or that there were no exits available for his use.


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       We conclude the district court examined the totality of the circumstances and that the
facts as found by the court are supported by substantial and competent evidence. On these facts,
we conclude the applicable constitutional principles were correctly applied in this case to
determine that a reasonable person in Wilske’s position would not have believed himself to have
had his freedom curtailed to the extent of an arrest. See Birkla, 126 Idaho at 502, 887 P.2d at 47
(upholding district court’s finding that questioning was not custodial despite some conflicting
testimony where the district court clearly examined the totality of the circumstances, the facts
found by the court were supported by substantial and competent evidence, and the court correctly
applied constitutional principles). Therefore, Wilske was not in custody for the purposes of
Miranda. Accordingly, the district court’s denial of Wilske’s motion to suppress is affirmed, as
is his judgment of conviction for felony driving under the influence.
       Judge LANSING and Judge MELANSON CONCUR.




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