                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 40017

STATE OF IDAHO,                                    )
                                                   )     2013 Opinion No. 38
       Plaintiff-Appellant,                        )
                                                   )     Filed: June 18, 2013
v.                                                 )
                                                   )     Stephen W. Kenyon, Clerk
TENNISON MICHAEL SILVER,                           )
                                                   )
       Defendant-Respondent.                       )
                                                   )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Order granting motion to suppress evidence, reversed, and case remanded.

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

       Wright Brothers Law Office, PLLC; Brooke B. Redmond, Twin Falls, for
       respondent.

                   ________________________________________________
LANSING, Judge
       The State appeals from the district court’s order suppressing statements made by
Tennison Michael Silver to law enforcement officers before the officers advised him of his right
to remain silent and his right to counsel. The State asserts the officers were not required to
notify Silver of his rights before questioning him because he was not in custody.
                                                  I.
                                         BACKGROUND
       A few minutes before midnight on December 1, 2011, a law enforcement officer initiated
a traffic stop after observing a driver, later identified as Silver, fail to make a complete stop at a
stop sign and exceed the posted speed limit. The officer informed Silver of the reason for the
stop and requested his license, registration, and proof of insurance. Silver explained that he was
driving his sister’s car, and that it would take him some time to find the insurance information.


                                                  1
During this time, the officer questioned him about a strong odor of marijuana that the officer
detected emanating from the vehicle. Silver explained that he had recently visited a friend who
smokes, but that he, Silver, had not smoked in four months. After checking the status of Silver’s
license, the officer asked Silver to step out of his car to perform a series of field sobriety tests.
        As the officer began to administer one of the tests, a second officer, who had recently
arrived on the scene, observed and removed a plastic bag containing marijuana that was plainly
visible in Silver’s pocket. The first officer asked Silver why he had lied, and again asked him
when he had last smoked marijuana. Silver responded that he had used marijuana thirty minutes
earlier. The officer asked if Silver had any other drugs or drug paraphernalia, which Silver
denied. The officer then stated, “If I end up taking you to jail, and you have anything else on
you, and you don’t disclose it to me, that’s introducing contraband into a secured facility.” He
then asked if Silver had “anything” on his person or in his car. Silver initially did not respond.
The second officer told Silver that because he had discovered marijuana in Silver’s pocket, he
could “rip [Silver’s] car apart,” and the first officer admonished Silver to “be straight.” Silver
then reported that there was an ounce of marijuana in the car which the officers’ ultimately
retrieved. The first officer asked, “are you dealing or just using?” Silver responded that he was
taking the marijuana to a friend and, in response to the officer’s follow-up question, confirmed
that he was delivering the marijuana to another person. The officer administered three field
sobriety tests and then placed Silver under arrest.
        Silver was charged with one felony count of possession of marijuana with intent to
deliver and one misdemeanor count of driving under the influence. He filed a motion to suppress
his responses to the officer’s questions on the ground that he was subjected to custodial
interrogation without Miranda 1 warnings. The district court granted the motion and suppressed
Silver’s statements. The State appeals.
                                                  II.
                                             ANALYSIS
        The only issue before this Court is whether Silver was in custody such that Miranda
warnings were required before the police questioning that led to his various admissions. On
review of a decision to grant or deny a motion to suppress evidence, this Court defers to the trial

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


                                                   2
court’s findings of fact unless they are clearly erroneous, but exercises free review over the
application of constitutional standards to those facts. State v. Hawkins, 131 Idaho 396, 400, 958
P.2d 22, 26 (Ct. App. 1998). 2
       To protect the Fifth Amendment privilege against compulsory self-incrimination, police
must inform individuals of their right to remain silent and their right to counsel, either retained or
appointed, before undertaking a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 467-
68 (1966). These warnings have been deemed necessary as a prophylactic measure to secure the
Fifth Amendment privilege because “without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime contains inherently compelling pressures
which work to undermine the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.” Id. at 467. A person is in custody, for Miranda purposes,
from the moment of formal arrest or as soon as the person’s “freedom of action is curtailed to a
‘degree associated with formal arrest.’”      Berkemer v. McCarty, 468 U.S. 420, 440 (1984)
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). See also State v. Medrano, 123
Idaho 114, 117, 844 P.2d 1364, 1367 (Ct. App. 1992).
       An objective test is used to determine whether a person was in custody when questioning
occurred. State v. James, 148 Idaho 574, 577, 225 P.3d 1169, 1172 (2010). The relevant inquiry
is how a reasonable person in the suspect’s position would have understood the situation.
Berkemer, 468 U.S. at 442; James, 148 Idaho at 577, 225 P.3d at 1172. The first step is to
determine whether an individual’s freedom of movement was curtailed.                Howes v. Fields,
___U.S. ___, ___, 132 S. Ct. 1181, 1189 (2012).            The freedom-of-movement inquiry is,
however, only a necessary and not a sufficient condition for Miranda custody. Maryland v.
Shatzer, 559 U.S. 98, ___, 130 S. Ct. 1213, 1224 (2010); State v. Hurst, 151 Idaho 430, 436, 258
P.3d 950, 956 (Ct. App. 2011). Thus, routine traffic stops and other investigative detentions
pursuant to Terry v. Ohio, 392 U.S. 1 (1968), do not implicate Miranda even though the detained
persons are not free to leave during the stop. Berkemer, 468 U.S. at 440.
       A court must consider all of the circumstances surrounding the interrogation. Stansbury
v. California, 511 U.S. 318, 322 (1994); James, 148 Idaho at 577, 225 P.3d at 1172. This
generally involves a consideration of whether the circumstances surrounding the interrogation



2
       The State does not challenge any of the district court’s factual findings.

                                                  3
have created a “police-dominated atmosphere,” Miranda, 384 U.S. at 445, and whether the
circumstances involve the type of “‘inherently compelling pressures’ that are often present when
a suspect is yanked from familiar surroundings in the outside world and subjected to
interrogation in a police station.” Howes, ___ U.S. at ___, 132 S. Ct. at 1191 (quoting Shatzer,
559 U.S. at ___, 130 S. Ct. at 1219 ). Specific 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 persons 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 435-42; James, 148
Idaho at 577-78, 225 P.3d at 1172-73; Medrano, 123 Idaho at 117-18, 844 P.2d at 1367-68. 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.
       In this case, Silver unquestionably was not free to leave during the traffic stop and DUI
investigation. We therefore examine the totality of the circumstances surrounding the police
questioning to determine whether a reasonable person would have believed that the restriction on
his freedom of movement was tantamount to a formal arrest. We first consider the State’s
argument that the district court erred by improperly focusing on whether a reasonable person
would have believed that he would be arrested at the conclusion of the traffic stop. This issue is
illuminated by the Idaho Supreme Court’s decision in James. There, a law enforcement officer
discovered methamphetamine in a car and threatened to arrest all three occupants for possession
of the methamphetamine unless one of them confessed to ownership, in which case the officer
stated he would only arrest that individual. The defendant confessed and was arrested. After
being charged with possession of a controlled substance, the defendant filed a motion to suppress
his admission, which the district court denied.      In a decision affirming the district court’s
decision, the Supreme Court stated:
       We find that the threat of lawful arrest alone does not transform non-custodial
       questioning into the functional equivalent of arrest, requiring Miranda warnings.
       Deputy Sterling, upon finding drugs in the car, had probable cause to arrest all of
       the occupants. Deputy Sterling’s statement of his intended future conduct cannot
       be said to objectively change the degree of restraint at the time of the statement.
       Although such a threat may well have implications as to the voluntariness of any

                                                 4
       statement made in response thereto, it cannot be said to have objectively modified
       the degree of restraint on James’ freedom of movement at that time.

Id. at 578, 225 P.3d at 1173. James establishes that an officer’s statement that a person will be
arrested is not sufficient alone to establish custody. Such a statement may be considered,
however, in conjunction with other circumstances, insofar as it affects how a reasonable person
would understand his situation at the time of the statement. See id.
       Here, the officer’s statement did not convey that Silver was going to be arrested. The
officer stated, “If I end up taking you to jail, and you have anything else on you, and you don’t
disclose it to me, that’s introducing contraband into a secured facility.” (Emphasis added.)
Because the officer prefaced his statement with the word “if,” a reasonable person would not
have understood his statement as an indication of imminent or inevitable arrest.
       Somewhat more troubling is the second officer’s statement that he could “rip [Silver’s]
car apart” because he had discovered marijuana in Silver’s pocket. This statement was arguably
coercive, and for that reason would be relevant to whether Silver’s subsequent statements were
involuntary. However, Silver did not argue below, and has not argued on appeal, that his
confession was involuntary and that issue is not before this Court. “The question whether a
person is ‘in custody’ is related to the question of voluntariness of statements obtained by
interrogation,” but “[d]espite the underlying relationship, different analyses are applied to answer
these questions.” James, 148 Idaho at 576 n.5, 225 P.3d at 1171 n.5. See also Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (“Such a noncustodial situation is not converted to one in
which Miranda applies simply because a reviewing court concludes that, even in the absence of
any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive
environment.”); State v. Doe, 130 Idaho 811, 814-15, 948 P.2d 166, 169-70 (Ct. App. 1997)
(explaining Miranda is based on the Fifth Amendment privilege against self-incrimination while
the doctrine disallowing the use of involuntary confessions is grounded in the Due Process
Clause of the Fourteenth Amendment).           Even if the police questioning here could be
characterized as coercive, the particular questioning involved in this case would not have
suggested to a reasonable person that he was in custody.
       We next address Silver’s argument that the district court correctly determined that the
questioning was custodial because the police exceeded the scope of the traffic stop and DUI
investigation and because the only apparent reason for the interrogation was to obtain


                                                 5
incriminating admissions for the purpose of elevating the prospective charge from simple
possession of marijuana to possession with intent to distribute. This Court rejected a nearly
identical argument in State v. Dice, 126 Idaho 595, 887 P.2d 1102 (Ct. App. 1994), where we
stated:
                 The error of the district court was in its analysis of the relationship
          between investigatory stops and the United States Supreme Court’s decision in
          Miranda. . . . The district court found that questions requiring self-incriminating
          answers were beyond the scope of permissible inquiry and therefore required
          Miranda warnings. This distinction, however, has never been made by the United
          States Supreme Court nor by the appellate courts of this state. Indeed, virtually
          any investigatory questioning, beyond mere identification matters, could be
          considered self-incriminating.

Dice, 126 Idaho at 600, 887 P.2d at 1107. An interrogation does not become custodial merely
because an officer expands the purpose of a stop to investigate other reasonable suspicions that
are formed during the course of the stop, or because an officer briefly inquires into other matters,
even when the questioning elicits incriminating responses from the defendant. 3
          Silver also appears to assert that once the officer had probable cause to arrest him, due to
the discovery of marijuana in his pocket, Miranda warnings were required before any further
questioning would be allowed. We disagree. Neither the existence of probable cause nor an
officer’s subjective intent to make an arrest transform what is an otherwise non-custodial
interrogation into a custodial interrogation. See Berkemer, 468 U.S. at 442 (“A policeman’s
unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would




3
        We note that whether an investigation exceeds the original justification for a stop is
typically part of a Fourth Amendment analysis regarding the lawfulness of a detention rather
than a Miranda custody analysis. E.g., State v. Ramirez, 145 Idaho 886, 889-90, 187 P.3d 1261,
1264-65 (Ct. App. 2008). Even under a Fourth Amendment analysis officers are not strictly
limited to investigating the initial purpose of the stop for two reasons. First, the purpose of a
stop is not permanently fixed at the moment the stop is initiated, for during the course of the
detention there may evolve suspicion of criminality different from that which initially prompted
the stop, and the scope of investigation is lawfully expanded in such situations. State v. Sheldon,
139 Idaho 980, 984, 88 P.3d 1220, 1224 (Ct. App. 2003). Second, officers may ask brief
questions beyond the scope of their investigation so long as the questions do not extend an
otherwise lawful detention. Ramirez, 145 Idaho at 889-90, 187 P.3d at 1264-65.


                                                   6
have understood his situation.”); James, 148 Idaho at 578, 225 P.3d at 1173 (holding that
defendant was not in custody although officer had probable cause).
       The nature and manner of questioning may be considered, however, as part of the totality
of the circumstances.     Silver compares the questioning that occurred in this case to the
questioning in State v. Myers, 118 Idaho 608, 798 P.2d 453 (Ct. App. 1990), where the defendant
was stopped by three police vehicles for a traffic violation. Although the legitimate justification
for the stop was a traffic infraction, the officers’ motive for stopping the defendant was to
question him about drug possession because he was a known drug offender. A detective arrived
seconds after the stop in a fourth vehicle, and the detective immediately began questioning the
defendant about possible possession of drugs or drug paraphernalia. In contrast, here, Silver was
initially stopped by a single officer who, after smelling marijuana, requested the assistance of a
second officer. No other officers were present. The presence of only two officers does not
typically suggest the type of police domination that could convert a traffic stop into custodial
interrogation. See Berkemer, 468 U.S. at 438-39. In addition, the officers’ questions regarding
Silver’s drug use, possession, and intent were in response to a rapidly unfolding situation--while
the first officer was discussing the traffic infractions with Silver, he noticed the smell of
marijuana, and when he began to conduct field sobriety tests, marijuana was observed in Silver’s
pocket. This was unlike the questioning in Myers. 4
       Considering the totality of the circumstances, we conclude that Silver was not in custody.
Only two officers were present at the scene. The officers did not draw their weapons or place
Silver in a police vehicle. He was not handcuffed or told that his detention was more than
temporary. Although the stop was at night, it took place in a publicly visible location on a public
roadway. Cf. James, 148 Idaho at 578, 225 P.3d at 1173. The interrogation was brief, lasting



4
        We also note that the Myers Court appears to have applied an incorrect standard to
evaluate whether an individual was in custody for Miranda purposes. The Court said that “[t]he
only relevant inquiry is whether a reasonable man in Myers’ position would have believed that
he was deprived of his freedom of movement in a significant way.” Myers, 118 Idaho at 611,
798 P.2d at 456. That standard for determining “custody” was articulated by the United States
Supreme Court in Miranda, 384 U.S. at 478, but it was subsequently modified in Beheler, 463
U.S. at 1125, where the Court established that a suspect is “in custody” for purpose of Miranda
when “there is a formal arrest or restraint on freedom of movement of the degree associated with
a formal arrest.”


                                                7
less than two minutes--approximately six to eight minutes after Silver was stopped. On balance,
these factors suggest the questioning occurred during an investigative detention and weigh
against a conclusion that Silver was in custody. The escalation in this case from a traffic
infraction stop, to a DUI investigation, to a drug possession investigation was not the result of
police browbeating or police domination, but instead was the result of the discovery of evidence
of additional possible crimes during the officers’ investigation.
       Accordingly, the order suppressing Silver’s statements is reversed, and the case is
remanded for further proceedings.
       Judge GRATTON and Judge MELANSON CONCUR.




                                                 8
