               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43464

STATE OF IDAHO,                                 )   2016 Unpublished Opinion No. 732
                                                )
       Plaintiff-Appellant,                     )   Filed: October 17, 2016
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
GUNNAR LIAM BREYMANN,                           )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Respondent.                    )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Barbara A. Buchanan, District Judge.

       Order granting motion to suppress, reversed and case remanded.

       Hon. Lawrence G. Wasden, Attorney General; Theodore S. Tollefson, Deputy
       Attorney General, Boise, for appellant.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Sally J. Cooley,
       Deputy Appellate Public Defender, Boise, for respondent.
                  ________________________________________________

GUTIERREZ, Judge
       The State appeals from the district court’s order granting Gunnar Liam Breymann’s
motion to suppress all evidence found during the warrantless search of his bedroom and all
statements made without the benefit of Miranda1 warnings. Specifically, the State argues the
district court erred when it determined Breymann’s confession and consent to search were
involuntary and the officer’s Miranda warnings were ineffective. For the reasons explained
below, we reverse the district court’s order and remand for further proceedings.




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

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                                               I.
                      FACTUAL AND PROCEDURAL BACKGROUND
        In March 2015, Breymann’s father called dispatch to report a burglary in his home. An
officer visited the home and discovered what appeared to be methamphetamine paraphernalia in
the backyard. Breymann’s father expressed concern about his son’s prior drug use to the officer
and suggested Breymann, who was nineteen at the time and lived with his parents, was involved
in the burglary.
        Five days later, the officer returned to the home and saw Breymann walking down the
street. The officer approached Breymann and told him that the officer needed to speak with
Breymann about the burglary at his home. Breymann stated that he believed another young man
was responsible for the burglary. Breymann informed the officer that Breymann had not been in
trouble with the law for over two years. He noted that the burglary had caused him stress and he
had difficulty eating. In response, the officer asked Breymann if he fell off the wagon and
started using drugs again. Breymann admitted he had been smoking “a little bit of weed here and
there.” The officer asked whether the methamphetamine paraphernalia in the backyard belonged
to Breymann, and Breymann indicated it did not. The officer asked whether Breymann had
drugs or drug paraphernalia in his bedroom, and the officer asked if he could search Breymann’s
bedroom.    Breymann responded that he had marijuana and marijuana paraphernalia in his
bedroom but refused to allow the officer to search the bedroom. The officer again asked whether
he could search the bedroom to reassure Breymann’s father that there was nothing in the
bedroom, but Breymann again denied consent to search. Breymann insisted he did not want his
bedroom searched, but offered to bring all the marijuana and marijuana paraphernalia to the
officer’s patrol vehicle.
        Both the officer and Breymann went to the house, where Breymann’s mother was
present.   The officer informed her that, based on Breymann’s admission of marijuana and
marijuana paraphernalia in his bedroom and the methamphetamine paraphernalia items found in
the backyard, the officer could obtain a search warrant but would rather not go through the
process. The officer continued to question Breymann while he denied consent to search his
bedroom. The officer handcuffed Breymann and indicated that he was not under arrest but was
detained while the officer obtained a search warrant. Breymann admitted to the presence of



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methamphetamine paraphernalia in his bedroom. Breymann began crying and stated he could
not go back to jail.
        Soon after, Breymann announced, “you want to go search my room? Go for it. You can
go search my room right now. Go for it.” Backup arrived and remained outside while the officer
escorted the handcuffed Breymann to the patrol vehicle. Breymann cried in the back of the
patrol vehicle and indicated he understood his rights. The officer then administered Miranda
warnings and gave Breymann a consent to search form, which Breymann filled out. The officer
asked Breymann, “so you’re saying all I’m going to find is that bong, some empty baggies, and a
meth pipe?” Breymann responded, “and an old dope pipe and a small little red glass dope bong
that my buddy gave me a while ago.” The officer, the backup officer, and Breymann entered the
home. The officer searched Breymann’s bedroom and discovered small bags of marijuana,
paraphernalia with marijuana residue, small bags of methamphetamine, and paraphernalia with
methamphetamine residue.
        The State charged Breymann with possession of methamphetamine, Idaho Code § 37-
2732(c)(1). Breymann filed a motion to suppress all evidence found during the warrantless
search of his bedroom and the confessions. The district court granted Breymann’s motion to
suppress, ruling Breymann’s confessions and consent to search were involuntary, and all
evidence seized was therefore inadmissible.
        On appeal, the State argues the district court erred in granting Breymann’s motion to
suppress.    The State maintains the district court erred in determining that Breymann’s
confessions and consent to search were involuntary.
                                                 II.
                                           ANALYSIS
        The standard of review of a suppression motion is bifurcated. This Court accepts the trial
court’s findings of fact that are supported by substantial evidence, but freely reviews the
application of constitutional principles to the facts as found. State v. Holland, 135 Idaho 159,
161, 15 P.3d 1167, 1169 (2000); State v. Spencer, 139 Idaho 736, 738, 85 P.3d 1135, 1137 (Ct.
App. 2004). At a suppression hearing, the power to assess the credulity 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).

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A.     Confessions
       The district court determined that Breymann’s pre-Miranda confession was inadmissible
because it was involuntary. The use of an involuntary statement against a criminal defendant
violates the Due Process Clause. Miller v. Fenton, 474 U.S. 104, 109-10 (1985); Haynes v.
Washington, 373 U.S. 503, 514-15 (1963); State v. Hays, 159 Idaho 476, 485, 362 P.3d 551, 560
(Ct. App. 2015). The exclusionary rule applies to any confession that was the product of police
coercion, either physical or psychological, or that was otherwise obtained by methods offensive
to due process. Miller, 474 U.S. at 109-10; Haynes, 373 U.S. at 514-15; State v. Doe, 130 Idaho
811, 814, 948 P.2d 166, 169 (Ct. App. 1997). “[C]oercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause.”
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
       To determine whether a confession is voluntary, a court must examine the totality of
circumstances and ask whether the defendant’s will was overborne by police conduct. Arizona v.
Fulminante, 499 U.S. 279, 287-88 (1991); State v. Troy, 124 Idaho 211, 214, 858 P.2d 750, 753
(1993); State v. Valero, 153 Idaho 910, 912, 285 P.3d 1014, 1016 (Ct. App. 2012).              In
determining the voluntariness of a confession, a court should consider the characteristics of the
accused and the details of the interrogation, including whether Miranda warnings were given,2
the youth of the accused, the accused’s level of education or low intelligence, the length of the
detention, the repeated and prolonged nature of the questioning, and the deprivation of food or
sleep. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Troy, 124 Idaho at 214, 858 P.2d at
753; Valero, 153 Idaho at 912, 285 P.3d at 1016. The presence or absence of Miranda warnings
is a particularly significant factor.    Missouri v. Seibert, 542 U.S. 600, 608-09 (2004)
(“[M]aintaining that a statement is involuntary even though given after warnings and voluntary
waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the
finding of a valid waiver.”); Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984) (“[C]ases in
which a defendant can make a colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of
Miranda are rare.”).    While one’s “mental condition is surely relevant to an individual’s
susceptibility to police coercion,” it cannot alone make a statement involuntary. Connelly, 479

2
       In Miranda, the United States Supreme Court held that anyone in custody must be
informed of his or her rights before interrogation.
                                                4
U.S. at 165; see also State v. Doe, 131 Idaho 709, 713, 963 P.2d 392, 396 (Ct. App. 1998). If,
under the totality of circumstances, the defendant’s free will was overborne by threats, through
direct or implied promises or other forms of coercion, then the statement is not voluntary and is
inadmissible. Fulminante, 499 U.S. at 285-87; Troy, 124 Idaho at 214, 858 P.2d at 753; Valero,
153 Idaho at 912, 285 P.3d at 1016. When a defendant alleges an interrogation is coercive, the
State bears the burden of proving voluntariness of the defendant’s confession by a preponderance
of the evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972); State v. Yager, 139 Idaho 680, 685,
85 P.3d 656, 661 (2004); State v. Johns, 112 Idaho 873, 878, 736 P.2d 1327, 1332 (1987).
        In its reasoning, the district court considered the totality of circumstances and noted the
absence of Miranda warnings, Breymann’s age, the repeated and prolonged nature of the
questioning, and Breymann’s mental condition--as reflected by his anxious and stressful state
and his crying.        Such circumstances, according to the district court, demonstrated that
Breymann’s will was overborne by police conduct.
       While the age of the accused is certainly a consideration, this factor is more compelling
in the case of juveniles because the voluntariness of juvenile confessions must be evaluated with
“special care.” Haley v. Ohio, 332 U.S. 596, 599 (1948). For instance, in Doody v. Schriro, 548
F.3d 847, 867 (9th Cir. 2008), the Ninth Circuit analyzed the voluntariness factors and
emphasized the defendant’s age--seventeen--noting that his youth made him vulnerable. Id. The
court also pointed out that the defendant had never been arrested before and had never heard of
Miranda rights. Id. On the other hand, in Davis v. United States, 724 A.2d 1163, 1168 (D.C.
1998), the court considered that the defendant was eighteen and had been arrested on three
previous occasions in ultimately holding that his confession was voluntary. Here, Breymann was
a nineteen-year-old adult, just a few months shy of his twentieth birthday. The record makes
clear that Breymann had been in trouble with the law before and had been administered Miranda
rights prior to this incident. In addition, Breymann confirmed he knew his rights immediately
before the officer administered the Miranda warnings. The age factor therefore weighs against a
finding of coercion.
       The district court viewed the repeated and prolonged nature of the questioning as
coercive. In State v. Fabeny, 132 Idaho 917, 923, 980 P.2d 581, 587 (Ct. App. 1999), we
concluded the defendant’s confession was voluntary, reasoning in part that the defendant was
questioned for approximately five hours. Here, however, the defendant was questioned for

                                                5
approximately thirty minutes before he was handcuffed. He was questioned for another twelve
minutes before being taken by the officer to the patrol vehicle to fill out a consent to search form
and administer Miranda warnings. Throughout this encounter, the record reflects that the officer
was respectful and patient toward Breymann, tried to calm him down when he started crying, let
him sit down, and loosened the handcuffs after he complained they were too tight. In sum, the
nature and duration of the questioning does not indicate coercive tactics were employed by the
officer.
           The district court also considered Breymann’s mental and emotional condition as a factor
that made him susceptible to police coercion.           The district court referred specifically to
Breymann’s crying and being distraught during the incident. An emotional reaction is inherent
in any arrest or detainment. See, e.g., United States v. Stewart, 536 F.3d 714, 723 (7th Cir. 2008)
(“[The defendant’s] emotional reaction to the entry of the FBI into the investigation is hardly
evidence of coercive interrogation tactics and does not by itself call into question the
voluntariness of his pre-Miranda statement.”); see also State v. Aitken, 121 Idaho 783, 785, 828
P.2d 346, 348 (Ct. App. 1992) (“There was no evidence, beyond the mere fact that [the
defendant] was in custody, from which the court could conclude [the defendant] had been
subjected to other than the normal duress inherent in any arrest.”). Here, the record does not
suggest Breymann’s stress or anxiety prevented him from making a rational decision. “So long
as the defendant is mentally capable of understanding the meaning and consequences of his
statements, a mental disturbance will not necessarily preclude the admissibility of a confession.”
State v. Powers, 96 Idaho 833, 840, 537 P.2d 1369, 1376 (1975). Without any indication that
Breymann was unable to understand the meaning and consequences of his confession, his
anxiousness, stress, and crying does not suggest Breymann’s confession was coerced.
           Lastly, the district court highlighted the fact that Breymann confessed before the officer
administered Miranda warnings. As noted, the presence or absence of Miranda warnings is a
significant factor in the analysis. But “the failure to provide Miranda warnings in and of itself
does not render a confession involuntary.” New York v. Quarles, 467 U.S. 649, 655 n.5 (1984).
This is the only factor that weighs in favor of coercion.3 The totality of circumstances indicates


3
       The district court did not address the following factors: the accused’s level of education
or low intelligence, the length of the detention, and deprivation of food or sleep. Neither the
State nor Breymann discussed the other factors in their briefs. However, two of these three
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that Breymann’s confession was voluntary. Accordingly, the district court erred in determining
that Breymann’s confession was inadmissible.
       The district court also ruled that Breymann’s post-Miranda confession about the presence
of paraphernalia in his bedroom was inadmissible due to the intensity of the questioning that
Breymann experienced and his “fragile demeanor.” The State argues on appeal that the district
court erred because it failed to consider the totality of circumstances in determining whether
Breymann voluntarily, knowingly, and intelligent waived his Miranda rights.
       Miranda safeguards are implicated when a person in custody is subjected to
interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). A waiver of Miranda rights
or the underlying constitutional privilege against self-incrimination must be made knowingly,
voluntarily, and intelligently. Oregon v. Elstad, 470 U.S. 298, 309 (1985); State v. Dunn, 134
Idaho 165, 169, 997 P.2d 626, 630 (Ct. App. 2000). The State bears the burden of demonstrating
that an individual has knowingly, voluntarily, and intelligently waived his rights by a
preponderance of the evidence. Doe, 131 Idaho at 712, 963 P.2d at 395. An appellate review of
this waiver issue encompasses the totality of the circumstances. Dunn, 134 Idaho at 169, 997
P.2d at 630. The test of voluntariness is whether, under the totality of the circumstances, the
suspect’s will was overborne by police coercion. Fulminante, 499 U.S. at 286; Connelly, 479
U.S. at 163-67; State v. Radford, 134 Idaho 187, 191, 998 P.2d 80, 84 (2000); State v. Davila,
127 Idaho 888, 892, 908 P.2d 581, 585 (Ct. App. 1995). The factors the Court must consider are
the same factors listed above: whether Miranda warnings were given, the youth of the accused,
the accused’s level of education or low intelligence, the length of the detention, the repeated and
prolonged nature of the questioning, and the deprivation of food or sleep. State v. Adamcik, 152
Idaho 445, 468, 272 P.3d 417, 440 (2012).
       As discussed, Breymann’s age weighs against a finding of coercion because he is an adult
who has been in trouble with the law in the past. The factor concerning the nature of the
questioning does not indicate the officer employed coercive tactics. The district court referred to




factors do not appear helpful--there is no indication that Breymann was sleep or food deprived
and neither party set forth evidence regarding Breymann’s intelligence or education. As for the
length of detention, Breymann was only detained for twelve minutes once the officer handcuffed
Breymann in his parent’s house. Accordingly, the length of detention does not support a finding
of coercion.
                                                7
the questioning as “intense,” but even assuming the questioning was intense does not necessarily
render the questioning coercive. Moreover, the record does not suggest that Breymann’s “fragile
demeanor” hindered his ability to understand the meaning and consequences of his waiver. The
totality of circumstances therefore demonstrates Breymann’s will was not overborne by police
coercion. Breymann voluntarily, knowingly, and intelligently waived his Miranda rights.
B.     Consent to Search
       The district court determined Breymann’s consent to search was also the result of duress
and coercion and was therefore inadmissible. The United States and Idaho Constitutions prohibit
unreasonable searches and seizures of persons or property.4 U.S. CONST. amend. IV; IDAHO
CONST. art. 1, § 17. Warrantless searches are presumed to be unreasonable and therefore
violative of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971);
State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 (1995); State v. Smith, 152 Idaho 115,
118, 266 P.3d 1220, 1223 (Ct. App. 2011). The State may overcome this presumption by
demonstrating that a warrantless search either fell within a well-recognized exception to the
warrant requirement or was otherwise reasonable under the circumstances.           Schmerber v.
California, 384 U.S. 757, 767-69 (1966); Weaver, 127 Idaho at 290, 900 P.2d at 198.
       Although a warrantless entry or search of a residence is generally illegal and violative of
the Fourth Amendment, such an entry or search may be rendered reasonable by an individual’s
consent--an exception to the warrant requirement.       Schneckloth 412 U.S. at 219; State v.
Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707,
963 P.2d 387, 390 (Ct. App. 1998). In such instances, the State has the burden of demonstrating
consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420,
422 (Ct. App. 1997). The State must show that consent was not the result of duress or coercion,
either direct or implied. Schneckloth, 412 U.S. at 248; State v. Whiteley, 124 Idaho 261, 264,
858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual’s consent is evaluated in
light of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at 803. Whether consent
was granted voluntarily, or was a product of coercion, is a question of fact to be determined by
all the surrounding circumstances. Schneckloth, 412 U.S. at 227; State v. Hansen, 138 Idaho
791, 796, 69 P.3d 1052, 1057 (2003).

4
        Breymann does not argue the Idaho Constitution affords greater protection, so this Court
follows the analysis pursuant to the Fourth Amendment to the United States Constitution.
                                                8
       A determination of voluntariness is not dependent “on the presence or the absence of a
single controlling criterion.” Schneckloth, 412 U.S. at 226. Factors to be considered include
whether there were numerous officers involved in the confrontation; the location and conditions
of the consent, including whether it was at night; whether the police retained the individual’s
identification; whether the individual was free to leave; and whether the individual knew of his
right to refuse consent. State v. Garcia, 143 Idaho 774, 778, 152 P.3d 645, 649 (Ct. App. 2006).
       In determining that Breymann’s consent to search was the result of duress and coercion,
the district court relied on the same factors considered in addressing the voluntariness of
Breymann’s confession. Looking at the totality of circumstances, however, reveals that
Breymann’s consent to search was voluntary. For instance, when Breymann first gave the
officer consent to search the bedroom, only the one officer was involved. The backup officer did
not arrive until after Breymann gave consent to search his bedroom. His mother was present and
interacted with the officer and Breymann periodically. Moreover, the incident occurred during
the day. Breymann was obviously aware of his right to refuse consent because he refused
consent several times before eventually granting consent. While the officer gave Breymann a
choice between granting consent and obtaining a search warrant, that does not constitute
coercion. Garcia, 143 Idaho at 779, 152 P.3d at 650 (“[I]t should be noted that bowing to
events, even if one is not happy with them, is not equivalent to being coerced. The voluntariness
of consent is not impaired simply because one is faced with two unpleasant choices--which
here . . . was choosing between consenting to search and allowing the marijuana in his trunk to
be discovered . . . .”). Based on the totality of circumstances, we conclude Breymann’s consent
to search was voluntary.
                                              III.
                                        CONCLUSION
       The district court erred in granting Breymann’s motion to suppress all evidence found
during the search of his bedroom and statements made because Breymann’s confessions and
consent to search were voluntary. Accordingly, we reverse the district court’s memorandum
decision and order granting Breymann’s motion to suppress and remand for further proceedings.
       Judge GRATTON and Judge HUSKEY CONCUR.




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