               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45104

STATE OF IDAHO,                                )
                                               ) Filed: August 31, 2018
       Plaintiff-Respondent,                   )
                                               ) Karel A. Lehrman, Clerk
v.                                             )
                                               )
RONALD EUGENE VAUGHN,                          )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Samuel A. Hoagland, District Judge.

       Judgment of conviction for trafficking in heroin, possession of a controlled
       substance, and possession of paraphernalia, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Ronald Eugene Vaughn appeals from his judgment of conviction for trafficking in heroin,
possession of a controlled substance, and possession of paraphernalia. On the first day of trial,
Vaughn made assertions related to a speculative Miranda 1 issue that he thought could form the
basis of an untimely motion to suppress. The district court stated that it was not going to grant
any motion to suppress based on what it heard regarding any alleged Miranda violation. On
appeal, Vaughn challenges the district court’s “order admitting his un-Mirandized statements.”
For the reasons set forth below, we affirm.
                                               I.

1
       See Miranda v. Arizona, 384 U.S. 436 (1996).


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                     FACTUAL AND PROCEDURAL BACKGROUND
       Vaughn was under investigation by state and federal law enforcement officials for
trafficking in heroin. As part of the investigation, a federal search warrant for a GPS tracking
device was obtained and attached to Vaughn’s vehicle because it was suspected that Vaughn was
travelling to Salt Lake City to purchase heroin and transport it back to Idaho.           Vaughn
subsequently travelled to Salt Lake City and back in one day, which law enforcement tracked via
the GPS. While Vaughn was driving back to Boise, a patrol officer observed Vaughn speeding
and conducted a traffic stop of his vehicle. Before making contact with Vaughn, a second officer
arrived to assist. A canine officer also responded, arriving almost simultaneously with the stop.
The initial officer made contact with Vaughn and requested that he step out of the vehicle. The
canine was deployed and alerted on the vehicle. A search of the vehicle by two of the officers
uncovered heroin, methamphetamine, and drug paraphernalia.
       While the search was being conducted, Vaughn sat on the guardrail nearby, talking with
one of the officers. Without being questioned, Vaughn informed the officer that there was drug
paraphernalia in the vehicle and admitted that the items in the vehicle were Vaughn’s. The
officer then asked Vaughn questions regarding his drug use, and Vaughn admitted he had used
methamphetamine approximately thirty minutes prior to the traffic stop. A grand jury indicted
Vaughn for trafficking in heroin, I.C. § 37-2732B(a)(6)(B); possession of a controlled substance,
I.C. § 37-2732(c)(1); and possession of drug paraphernalia, I.C. § 37-2734A(1).
       Vaughn filed a motion to suppress, challenging the stop, which the district court denied.
The State subsequently filed an I.R.E. 404(b) motion to admit evidence of Vaughn’s ongoing
heroin distribution and trafficking, including post-Miranda statements Vaughn made during his
interview with law enforcement on the day of his arrest. Vaughn objected to the State’s motion
as it related to evidence of prior drug trafficking, arguing the evidence was unfairly prejudicial,
unnecessary, cumulative, and inflammatory. At the hearing on its I.R.E. 404(b) motion, in
addition to presenting argument on its motion, the State also presented argument that the
incriminating statements Vaughn made during the traffic stop should be admitted. 2 Those


2
       The State asserted that the statements Vaughn made during the traffic stop were not
included in its motion because it did not believe the statements constituted I.R.E. 404(b)
evidence.

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statements included, “I have a syringe in the truck;” Vaughn’s admission to using
methamphetamine thirty minutes prior to the traffic stop; and Vaughn asking the officer whether
Vaughn was being arrested just for a syringe.          In response, Vaughn’s counsel discussed
statements Vaughn made during his interview with a detective and special agent as well as
statements Vaughn made to the patrol officers at the time of the traffic stop:
                Your Honor, the State disclosed on Thursday the audio--redacted audio of
       [Vaughn’s] interview with Detective Bruner and Special Agent Williams. Prior to
       that, I did not have any type of audio of that interview.
                [Vaughn] tells me that a lot of the information he provided to these
       officers [was] prior to being advised of his right to remain silent or his right to
       have an attorney present.
                I didn’t get a chance to look into that more--in more detail. Of course, this
       would delay proceedings in search of another Motion to Suppress those
       statements if indeed they were pre-Miranda.
                The comments on the side of the road--again, there was no rights given at
       that stage. I do know that he was in police custody at the time of the questioning,
       and that there were no syringes located in his truck or bag.
                So, Your Honor, I think those statements are prejudicial.
       The State explained that the recordings of the admissions Vaughn made during the traffic
stop were provided several months prior to the hearing and the interview was disclosed the
month prior.    Regarding the interview, Vaughn’s counsel stated it was true he received a
redacted transcript of the interview and “did not think there was any Miranda issues; otherwise
[he] would have included it in [his] motion based on those transcripts” but Vaughn recently told
him Vaughn “believe[d] all those statements were pre-Miranda.” The district court invited the
State to comment on the Miranda warnings, to which the State responded:
       [A]s it relates to the interview of [Vaughn], he was Mirandized and that is on the
       audio recording of the interview before any questioning begins. And so that’s
       what Detective Bruner and Special Agent Williams and [Vaughn] goes into
       significant details. Finally, about--he reiterates using meth. Initially won’t
       answer questions about heroin but then finally does and admits picking up a
       half--what was determined to be a half ounce of heroin and bringing it back, and
       then goes into his talk about his prior trafficking conduct and distribution conduct.
               As it relates to the scene of the traffic stop, counsel is correct. [Vaughn] is
       not Mirandized. [Vaughn] is not handcuffed. He’s sitting on the guardrail. The
       canine is there. They’re talking about--just about everything. [Vaughn] talks
       about his kids, talks about Jesus Christ, talks about going to A.A. meetings. And
       when the officers begin searching [Vaughn], not when he’s questioned, but says



                                                 3
       himself to Officer Martinez: “There is one thing in there.” And that’s about 19
       minutes in.
               And the officer says: “What’s in there?” He says: “There’s a syringe.”
       The officers are searching and so I think it’s fair to infer that he’s trying to warn
       the officers that there may be something dangerous in that truck.
               And so [Officer] Martinez says: “Hey, be careful. He says there’s a
       syringe in the truck.” [Vaughn] goes on to say: “There’s also a spoon.” And
       then he talks about where it might be in the garbage bag. And so he provided this
       information and he was not being questioned about methamphetamine, a syringe
       or a spoon at the time. They were just chatting. Officer Martinez was standing
       there.
               Thereafter, they came back and did say: “We can’t find the syringe,”
       essentially. “What garbage bag are you talking about?” So they’re trying to
       locate what [Vaughn] told them was in there.
               . . . And then it’s after that [Vaughn] is asked: “Did you recently use it?”
       And he says he used. And then he goes on later to talk about using 30 minutes
       before when he’s questioning whether or not he’s being arrested for a syringe.
               And so the traffic stop statements are not Mirandized, but it’s the State’s
       position, one, the defense has had those audios since November. The on body
       video and the recording from Officer Martinez were both provided in November.
               So there is no good cause or excusable neglect to not raise that issue
       pursuant to Your Honor’s scheduling order on the 12 (B) rule.
       The district court stated that, based upon what it “heard,” there was no Miranda violation
“regarding the information on the tapes at the scene” because based on what it “heard,” Vaughn
“voluntarily disclosed those things when he was not in custody or otherwise.” The district court
further concluded the evidence was admissible and it was “not going to grant any Motion to
Suppress or exclude that evidence,” but if Vaughn had “additional information or evidence,” it
would be “willing to rehear the arguments.” The district court’s denial also included “the tapes
and whatnot related to when [Vaughn] was being interviewed” because from what the district
court “heard,” Vaughn was “previously Mirandized.” With respect to the State’s timeliness
argument, the district court stated that any suppression claims related to Vaughn’s on-scene
admissions “could have and should have been brought in a timely manner.” Following trial, the
jury found Vaughn guilty of all three counts alleged in the indictment. Vaughn appeals.
                                                II.
                                          ANALYSIS
       Vaughn argues that, although the suppression issue was addressed in the context of the
State’s I.R.E. 404(b) motion, he did move to suppress his on-scene statements, and the district


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court’s denial of his motion was erroneous. The State argues that Vaughn did not file a motion
to suppress his on-scene statements and, even if Vaughn’s assertions at the I.R.E. 404(b) hearing
could be construed as a motion, it is unclear whether the district court ruled on the motion or
whether the district court was expressing its preliminary views on such a motion. Alternatively,
the State argues that Vaughn has failed to show error in the denial of Vaughn’s request to
suppress the statements he made on-scene. We hold that Vaughn’s suppression claim is not
preserved for appeal.
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992).                 “This limitation on
appellate-court authority serves to induce the timely raising of claims and objections, which
gives the district court the opportunity to consider and resolve them.” Puckett v. United States,
556 U.S. 129, 134 (2009). Idaho Criminal Rule 12(c) governs motions to suppress and requires
that such motions describe the evidence sought to be suppressed and the legal basis for
suppression. Rule 12(d) also requires a motion to suppress to be filed within twenty-eight days
after the entry of a plea of not guilty or seven days before trial, whichever is earlier. It is
undisputed that Vaughn did not timely file a motion to suppress his on-scene statements in
accordance with the requirements of I.C.R. 12. Nor did Vaughn make an oral request to suppress
those statements. Rather, at the hearing on the State’s I.R.E. 404(b) motion, Vaughn made
comments regarding the admissibility of statements he made during the police interview and
statements he made on-scene. As part of his comments, Vaughn referenced Miranda, but this
reference related to the statements he made during his interview. The only argument Vaughn
made specific to his on-scene statements was: “The comments on the side of the road--again,
there [were] no rights given at that stage.” Vaughn’s counsel followed this comment with: “I do
know that he was in police custody at the time of the questioning, and that there were no syringes
located in his truck or bag.” There was no indication whether this “custody” comment related to
what occurred on-scene or what occurred during the interview, nor did Vaughn present any
evidence in conjunction with his Miranda-related comments.           Indeed, when discussing his
interview, Vaughn’s counsel stated that Vaughn told him “a lot of the information he provided”
was “prior to being advised of his right to remain silent or his right to have an attorney present,”
but Vaughn’s counsel had not had a chance to “look into that more” and doing so would “delay


                                                 5
the proceedings in search of another Motion to Suppress those statements if indeed they were
pre-Miranda.” Vaughn’s counsel’s speculative comments about a potential Miranda issue that
could be the basis of a motion to suppress were not the equivalent of an actual motion to
suppress.
       On appeal, Vaughn argues that the manner in which his suppression claim was presented
to the district court does not preclude appellate review because this Court may review any issue
decided by the district court. According to Vaughn, the district court decided the suppression
issue in relation to Vaughn’s on-scene statements when the district court stated:
              Well, based upon what I’ve heard this morning, it appears to the court that
       there was not a violation of Miranda regarding the information on the tapes at the
       scene. From what I’ve heard, [Vaughn] voluntarily disclosed those things when
       he was not in custody or otherwise. The facts and circumstances there do not
       disclose a Miranda violation.
       An exception to the rule that issues not raised below will not be considered on appeal
may apply when the issue was argued to or decided by the trial court. State v. DuValt, 131 Idaho
550, 553, 961 P.2d 641, 644 (1998). This exception does not apply in this case because the
district court could not decide a motion never presented to it. While the district court expressed
its view of a potential motion to suppress Vaughn’s on-scene statements, there was no actual
motion to suppress before the district court and no evidence on which it could make factual
findings necessary to a suppression ruling. Vaughn claims the presentation of evidence was
unnecessary because the “facts were set forth in the testimony taken during the hearing on the
prior motion to suppress and in the grand jury proceedings,” which the district court took judicial
notice of “at the hearing on the prior motion to suppress.” Vaughn also asserts that the district
court “made factual determinations based on what it heard during” the parties’ arguments at the
I.R.E. 404(b) hearing and from the on-scene recordings, which Vaughn contends the district
court “apparently” took judicial notice of because the district court’s ruling included the phrase
“information on the tapes at the scene.” Vaughn’s argument that the district court’s ruling was
predicated on factual findings from evidence admitted in an entirely separate hearing is without
merit, as is Vaughn’s claim that the district court “apparently” took judicial notice of the
on-scene recordings. As indicated, no evidence was presented to the district court at the hearing
in which Vaughn made his Miranda arguments. Indeed, the district court commented on the



                                                6
absence of evidence, noting it was at a “disadvantage” because it had not seen the tapes or heard
the audio. Further, the record belies Vaughn’s claim that the district court took judicial notice of
any audio recordings. The district court’s comment regarding the recordings, read in context,
was: “Well, based on upon what I’ve heard this morning, it appears to the court that there was
not a violation of Miranda regarding the information on the tapes at the scene.” (Emphasis
added.) This comment relates to the district court’s conclusion based on the arguments the
district court heard, not the content of the recordings. At best, the district court’s comments
regarding Vaughn’s on-scene statements reflected an advisory or preliminary determination on
admissibility, particularly in light of the court’s invitation to reconsider the issue if Vaughn
presented additional information or evidence. Preliminary determinations on the admissibility of
evidence are not reviewable on appeal. Hudelson v. Delta Int’l Mach. Corp., 142 Idaho 244,
251, 127 P.3d 147, 154 (2005) (declining to review a claim that the district court erred in an
evidentiary ruling because the district court did not “unqualifiedly rule upon the admissibility of
th[e] evidence”).
       Vaughn’s arguments on appeal regarding the merits of his Miranda claim only emphasize
the absence of evidence and our conclusion that his claim is not preserved. Vaughn’s merits
argument relies on evidence from the grand jury transcript and testimony from the prior
suppression hearing, none of which was presented or even argued to the district court in support
of Vaughn’s speculative Miranda claim. From this, Vaughn claims he was in custody under the
factors set forth in Berkemer v. McCarty, 468 U.S. 420 (1984), which include the location and
time of the stop, the length of the interview, the nature and tone of the questioning, whether the
defendant was there voluntarily, and the demeanor of the people involved. The district court did
not make any factual findings pertinent to these factors, implicit or otherwise. Even if the district
court had done so, any such findings would not be supported by substantial evidence because no
evidence was presented in support of Vaughn’s Miranda arguments. See State v. Atkinson, 128
Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996) (noting that 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). Moreover, Vaughn never made the fact-based arguments to the district court that he
now makes on appeal. Appellate court review is limited to the evidence, theories, and arguments


                                                 7
that were presented below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704
(2017). The only argument in the transcript that is specific to Vaughn’s on-scene statements is
the assertion that “no rights” had been “given at that stage.” It is unclear whether Vaughn’s
counsel’s subsequent comment that counsel knew Vaughn “was in police custody at the time of
the questioning” relates to Vaughn’s on-scene statements as opposed to Vaughn’s in-custody
interview. Even if it did, Vaughn never argued, as he does on appeal, that he was in custody
because of the number of officers present, the location of the stop, or the conduct of the officers.
These arguments are, therefore, not preserved. 3 See Garcia-Rodriguez, 162 Idaho at 275, 396
P.3d at 704.
       Vaughn did not file a timely motion to suppress his on-scene statements, he did not make
an oral motion to suppress those statements or offer any evidence in support of such a motion,
and he did not preserve his suppression arguments in district court. Although the district court
indicated it would deny any motion to suppress based on the arguments it heard, that
determination was, at best, advisory and preliminary. Therefore, we decline to consider the
merits of Vaughn’s Miranda claim.
                                                III.
                                         CONCLUSION
       Vaughn’s speculative Miranda claim is not preserved and is, therefore, not reviewable on
appeal. Vaughn’s judgment of conviction for trafficking in heroin, possession of a controlled
substance, and possession of drug paraphernalia is affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




3
        Vaughn argues that while his specific arguments in support of his Miranda claim have
“evolved” on appeal, “that is not a reason for the appellate courts to not consider the issue raised
on appeal.” Vaughn relies on Ada Cnty. Highway Dist. v. Brooke View, Inc., 162 Idaho 138, 395
P.3d 357 (2017), to support this argument. In that case, the Supreme Court stated that entirely
new substantive issues cannot be raised for the first time on appeal, but arguments in support of
an issue preserved in the trial court may evolve on appeal. Id. at 142 n.2, 395 P.3d at 361 n.2.
Even if arguments may evolve, the Supreme Court has also stated that appellate court review is
limited to the evidence, theories, and arguments that were presented below. Garcia-Rodriguez,
162 Idaho at 275, 396 P.3d at 704. In this case, the issue was not properly presented below, and
the evidence, theories, and arguments raised on appeal were not presented below.

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