               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43107

STATE OF IDAHO,                                ) 2017 Opinion No. 14
                                               )
       Plaintiff-Respondent,                   ) Filed: February 14, 2017
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
GREGORY WAYNE POWELL,                          )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Order denying motion to suppress, reversed; judgment of conviction, vacated.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Gregory Wayne Powell appeals from his judgment of conviction for lewd conduct with a
minor under sixteen. Specifically, he argues the district court erred in denying Powell’s motion
to suppress evidence obtained during his parole hearing. For the reasons set forth below, we
reverse the district court’s order denying Powell’s motion to suppress and vacate his judgment of
conviction.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In 2007, Powell was charged with two counts of lewd conduct with a minor under
sixteen, Idaho Code § 18-1508.      Each charge was based upon Powell’s conduct with two
different victims. As part of a plea agreement, Powell pled guilty to one count and the State



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dismissed the other count. Powell was sentenced to a unified sixteen-year sentence, with seven
years determinate.
       In 2013, Powell was nearing completion of the determinate portion of his sentence and
was being considered for parole.      As part of the parole process, Powell participated in a
prehearing interview with a parole hearing officer. During this interview, the hearing officer
asked Powell numerous questions regarding his social and criminal history. Included in this line
of questioning were inquiries into whether Powell previously committed any other uncharged
sexual offenses. At no time did the hearing officer promise that Powell would not be prosecuted
for any incriminating responses. The hearing officer did, however, instruct Powell that if he did
not answer the questions truthfully, he would be denied parole. Powell admitted to the hearing
officer to having engaged in lewd conduct with two additional victims--conduct for which he had
not been convicted. 1 The hearing officer then reported the additional victims to local law
enforcement.
       Powell then appeared before the Idaho Commission of Pardons and Parole Board for a
parole hearing. During that hearing, Powell again admitted to having engaged in lewd conduct
with two additional victims. The parole board granted Powell a tentative parole date conditioned
upon his successful completion of several classes.
       Four months after Powell’s parole hearing, law enforcement officers interviewed Powell
about his incriminating admission.        Officers read Powell Miranda 2 warnings prior to
questioning, and Powell again admitted to sexually molesting two additional victims. Based
upon the statements made to the parole hearing officer, the parole board and the law enforcement
officers, the State charged Powell with two additional counts of lewd conduct with a minor under
sixteen. Powell filed a motion to suppress evidence of the statements he made during the
prehearing interview and parole board hearing on the grounds they were obtained in violation of
his Fifth Amendment right against self-incrimination. The district court denied the motion,
finding the State did not compel Powell to make the self-incriminating statements. Instead, the
court found that Powell voluntarily disclosed the information out of his desire to be paroled.

1
       Although not convicted, the State had already charged Powell in 2007 for his conduct
with one of those victims. The State dismissed the charge pursuant to the plea agreement
underlying Powell’s original conviction.
2
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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       Powell entered a conditional guilty plea to one count of lewd conduct with a minor,
reserving the right to appeal the denial of his motion to suppress. In exchange, the State
dismissed the second count of lewd conduct. Powell timely appeals the district court’s denial of
his motion to suppress.
                                                II.
                                           ANALYSIS
       Powell maintains that the district court erred in denying his motion to suppress
incriminating statements he made during a prehearing interview and parole board hearing. He
argues these statements were taken in violation of his Fifth Amendment right against compelled
self-incrimination. 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).
       The Fifth Amendment to the United States Constitution guarantees that no person “shall
be compelled in any criminal case to be a witness against himself.” This privilege applies to the
states through the Fourteenth Amendment. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
285-86 (1998). It is well-accepted that the protections of the Fifth Amendment extend beyond
the context of a criminal trial, granting an individual the right “not to answer official questions
put to him in any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77
(1973). These protections are not lost by conviction or incarceration--the United States Supreme
Court has specifically held that an individual does not lose the Fifth Amendment’s protections
merely because he or she made incriminating statements while incarcerated or on probation.
Minnesota v. Murphy, 465 U.S. 420, 426 (1984). An individual protected by the privilege may
rightfully refuse to answer unless and until the individual is granted immunity against future use
of the compelled answers in a subsequent criminal proceeding. Id. Absent such immunity, if the
individual is nevertheless compelled to answer, the answers “are inadmissible in a subsequent
trial for a crime other than that for which he has been convicted.” Id.

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       Despite the fact that Powell was incarcerated at the time of the statements and that he
disclosed the incriminating information as part of the parole process, the Fifth Amendment
protections were still available to him. However, Powell never affirmatively asserted his Fifth
Amendment privilege or refused to answer questions. Instead, he fully and honestly answered
the questions put to him during the parole process.
       Ordinarily, to be afforded the protections of the Fifth Amendment, a defendant must
affirmatively invoke the privilege. United States v. Monia, 317 U.S. 424, 427 (1943); State v.
Crowe, 131 Idaho 109, 112, 952 P.2d 1245, 1248 (1998). This duty to claim the privilege
remains with the individual even when the government is unquestionably attempting to compel a
response. Garner v. United States, 424 U.S. 648, 654 (1976). “[I]f a witness under compulsion
to testify makes disclosures instead of claiming the privilege, the government has not
‘compelled’ him to incriminate himself.” Id. Thus, if the individual being questioned does not
assert the privilege and instead voluntarily responds without protest, the responses are ordinarily
not considered to have been compelled within the meaning of the Fifth Amendment. Murphy,
465 U.S. at 427-28.
       However, an individual’s failure to affirmatively assert his or her Fifth Amendment
privilege does not necessarily preclude its benefit. See Garner, 424 U.S. at 656-57. The United
States Supreme Court has previously held that a defendant’s failure to affirmatively invoke Fifth
Amendment protections may be excused in situations where that individual is denied a “free
choice to admit, deny, or refuse to answer.” Id. at 656-57. The Court has recognized that such
coercion occurs where the very assertion of the privilege is penalized so as to “foreclose a free
choice to remain silent.” Murphy, 465 U.S.at 437. Such circumstances are commonly referred
to as a “classic penalty situation.” Id. at 436. To constitute a penalty situation, the individual
must be faced with the government’s assertion, either expressly or impliedly, that invocation of
the Fifth Amendment will lead to a substantial penalty. See, e.g., Lefkowitz v. Cunningham, 431
U.S. 801, 806 (1977).
       Powell argues that his failure to affirmatively invoke the Fifth Amendment should be
excused because he was faced with a classic penalty situation. Not only were Powell’s self-
incriminating statements used against him in a subsequent criminal prosecution, but he argues
that the State compelled him to make these self-incriminating disclosures by threatening to deny
his request for parole if he remained silent. The State does not contest the factual basis for

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Powell’s allegations. Instead, the State argues that because Powell was under no obligation to
seek parole, his voluntary participation in the parole process, including his incriminating
responses, could not have been compelled for Fifth Amendment purposes. Thus, the State’s
argument suggests that we need not address whether Powell faced a classic penalty situation due
to his voluntary act of seeking the benefit of parole and his failure to invoke the privilege.
       The State relies on the United States Supreme Court case Woodard to support its
assertion that an individual cannot be compelled to self-incriminate by voluntarily participating
in optional proceedings. In Woodard, a death row inmate was offered a voluntary interview as
part of the state’s statutorily mandated clemency process. Woodard, 523 U.S. at 276-77. The
Court recognized that Woodard faced a difficult choice between providing information in a
voluntary clemency interview that risked damaging his case for clemency or post-conviction
relief or of remaining silent and having the clemency board draw an adverse inference from his
silence.   Id. at 288.   Woodard declined to participate in the interview, asserting his Fifth
Amendment right. Id. at 285. The Court nonetheless concluded that “this pressure to speak in
the hope of improving his chance of being granted clemency does not make the interview
compelled” within the meaning of the Fifth Amendment. Id. at 288.
       A significant distinction between Woodard and Powell’s case is that in Woodard, the
clemency hearing was statutorily mandated, and the issue of clemency eligibility would be
decided with or without Woodard’s participation. Conversely, before Powell could be deemed
eligible for parole, he was required to participate fully in the process. Not only was Woodard’s
participation not required, but his nonparticipation did not foreclose his eligibility to receive
clemency. Instead, his refusal to participate merely allowed the parole board to draw an adverse
inference from his silence. Conversely, Powell was informed that failing to participate would
foreclose his eligibility for parole. Thus, the fact that Powell voluntarily participated in the
parole process does not foreclose the possibility that he was compelled to self-incriminate for
purposes of the Fifth Amendment.
       We therefore turn to the critical issue of this case: whether the circumstances of Powell’s
case constituted a classic penalty situation such that his failure to affirmatively invoke the
privilege is excusable. To constitute a penalty situation, Powell must have been threatened that
invoking his Fifth Amendment right to silence would be met with a substantial penalty such that



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he was deprived of the ability to voluntarily invoke the privilege. See Cunningham, 431 U.S. at
806. He contends being denied parole constituted that substantial penalty.
        Neither the United States Supreme Court nor Idaho courts have specifically decided
whether the threat of denied parole is a sufficiently compelling penalty to implicate the classic
penalty situation exception to the invocation requirement of the Fifth Amendment. The cases in
which the United States Supreme Court has applied the classic penalty exception have involved
situations where “the state not only compelled an individual to appear and testify, but also sought
to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or
other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’”
Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806). In these “penalty” cases, the
Court has focused its inquiry into the severity of the penalty in deciding whether an individual
was unconstitutionally compelled. See McKune v. Lile, 536 U.S. 24, 49 (2002) (O’Connor, J.,
concurring) (“some penalties are so great as to ‘compel[l]’ such [self-incriminating] testimony,
while others do not rise to that level”). Penalties the Court has deemed severe enough to offend
the Fifth Amendment have included termination of employment, Uniformed Sanitation Men
Ass’n, Inc. v. Comm’r of Sanitation of the City of New York, 392 U.S. 280 (1968) and Garrity v.
New Jersey, 385 U.S. 493 (1967); loss of a professional license, Spevack v. Klein, 385 U.S. 511
(1967); ineligibility to receive government contracts, Turley, 414 U.S. 70; and loss of the right to
participate in political associations and to hold public office, Cunningham, 431 U.S. 801.
       Despite never specifically addressing whether the denial of parole constitutes a
sufficiently compelling penalty, the United States and Idaho Supreme Courts have considered
whether other situations encountered by convicted or incarcerated individuals are sufficiently
severe. See, e.g., McKune, 536 U.S. at 37-38 (plurality opinion); State v. Van Komen, 160 Idaho
534, 538-39, 376 P.3d 738, 742-43 (2016).
       The United States Supreme Court did not consider the imposition of harsher conditions of
confinement sufficiently severe to compel self-incrimination.           McKune, 536 U.S. at 50
(O’Connor, J., concurring). In McKune, a prisoner convicted of various sexual offenses was
forced to participate in a prison treatment program prior to his scheduled release. Id. at 29-30
(plurality opinion). As part of the program, all inmates were required to complete a sexual
history form detailing all prior sexual activities, regardless of whether those activities constituted
uncharged offenses.     Id. at 30.    Officials utilized a polygraph examination to verify the

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truthfulness of the responses, and the responses were not privileged. Id. A prisoner’s refusal to
participate in the program resulted in a significant diminishment of prison rights, including
transfer to a maximum-security unit. Id. at 30-31. McKune refused to participate in the program
on the basis that the required disclosures violated his Fifth Amendment privilege against self-
incrimination. Id. at 31. In the ensuing appeal, the United States Supreme Court was unable to
render a majority decision. Id. at 29. In the controlling opinion, authored by Justice O’Connor,
she concluded that the consequences facing McKune for remaining silent were not serious
enough to compel him to be a witness against himself. Id. at 50. And, although it was not the
controlling opinion, the plurality opinion considered it significant that McKune’s refusal to
participate neither extended his term of incarceration nor affected his eligibility for good-time
credits or parole. Id. at 38 (plurality opinion).
       In another case involving a convicted individual, the Idaho Supreme Court held that a
district court’s relinquishment of jurisdiction was an impermissible penalty in violation of the
Fifth Amendment. Van Komen, 160 Idaho at 540, 376 P.3d at 744. In Van Komen, an individual
on probation for a drug offense admitted to violating the terms of his probation. Id. at 537, 376
P.3d at 741. The district court revoked Van Komen’s probation and retained jurisdiction on the
condition that Van Komen take a polygraph examination. Id. Although he initially agreed to
this condition, Van Komen later refused to take the polygraph examination, and the district court
relinquished its jurisdiction based on his refusal. Id. at 537-38, 376 P.3d at 741-42. On appeal,
the Idaho Supreme Court held that the district court’s conduct unconstitutionally penalized
Van Komen for assertion of his Fifth Amendment privilege. Id. at 540, 376 P.3d at 744.
       Similarly, in a Ninth Circuit case involving a convicted individual, the court held that the
probation condition requiring the defendant to fully disclose past sexual misconduct or risk
having his probation revoked violated his Fifth Amendment right against self-incrimination.
United States v. Antelope, 395 F.3d 1128, 1139 (9th Cir. 2005). In Antelope, an individual on
probation for a sex offense was required to disclose prior sexual history and participate in
random polygraph examinations as a condition of his probation. Id. at 1131. When Antelope
refused to participate without promise of immunity from prosecution, the district court revoked
Antelope’s probation and sentenced him to prison. Id. at 1131-32. On appeal, the court opined
that by refusing to recognize that the required answers could not be used against Antelope in a
future criminal proceeding, Antelope was placed in a catch-22 predicament. Id. at 1139. The

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court ultimately held that the district court’s revocation of Antelope’s probation
unconstitutionally penalized him in violation of his Fifth Amendment privilege. Id.
        Unlike McKune, where the inmate faced a penalty that did not extend his term of
incarceration or affect his eligibility for parole, Powell faced a penalty that would not only affect
his eligibility for parole, but would blatantly render him ineligible. Regarding the seriousness of
the penalty, McKune’s assertion of the privilege implicated only a choice among varying
conditions of confinement. In contrast, similar to the catch-22 situation faced by Antelope,
Powell faced choosing between incriminating disclosures and release or silence and continued
confinement. Powell faced a much more severe penalty than McKune. Moreover, similar to
Van Komen, where the court penalized the defendant by relinquishing jurisdiction for his
assertion of his constitutional right to silence, Powell would have been penalized had he asserted
his right.
        In determining whether a situation rises to the level of a classic penalty situation, the
United States Supreme Court provided guidance in Murphy:
                The threat of punishment for reliance on the privilege distinguishes cases
        of this sort from the ordinary case in which a witness is merely required to appear
        and give testimony. A state may require a probationer to appear and discuss
        matters that affect his probationary status; such a requirement, without more, does
        not give rise to a self-executing privilege. The result may be different if the
        questions put to the probationer, however relevant to his probationary status, call
        for answers that would incriminate him in a pending or later criminal prosecution.
        There is thus a substantial basis in our cases for concluding that if the state, either
        expressly or by implication, asserts that invocation of the privilege would lead to
        revocation of probation, it would have created the classic penalty situation, the
        failure to assert the privilege would be excused, and the probationer’s answers
        would be deemed compelled and inadmissible in a criminal prosecution.
Murphy, 465 U.S. at 435.
        Based upon these cases, we hold that the facts of Powell’s case implicate precisely the
type of penalizing conduct contemplated by the courts in classic penalty situation cases. The
State’s threat of denied parole was a sufficiently substantial penalty to compel Powell to self-
incriminate.   Because the penalty faced by Powell was sufficiently severe, his failure to
affirmatively assert the privilege is excused under the classic penalty situation exception to the
invocation requirement of the Fifth Amendment. Therefore, his compelled statements obtained
during the parole process were obtained in violation of his Fifth Amendment rights and are
inadmissible in a subsequent criminal prosecution against him.

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       Finally, the State argues that because Powell also made the same incriminating
admissions to law enforcement officials during a Mirandized interview, the State could properly
rely on his statements to law enforcement officers to pursue criminal charges. We are not
persuaded by this argument.      Powell’s voluntary disclosure to law enforcement officials
following a Miranda warning may not be viewed in isolation from Powell’s previously
compelled admission. As Murphy makes clear, the Constitution bars the use of compelled,
incriminating testimonial statements and their fruits in subsequent criminal prosecutions.
Murphy, 465 U.S. at 435 n.7. The reasoning behind this is sound--the State cannot compel a
parolee or probationer to provide this kind of incriminating testimonial evidence, which may be
used against him in the noncriminal proceeding, and then use that information again, directly or
indirectly, to prosecute the individual criminally. See id. If the State wishes to use the same
incriminating information initially obtained from a compelled interview in a subsequent criminal
prosecution, the State has the burden of proving that the information upon which it relies was
“derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v.
United States, 406 U.S. 441, 460 (1972). As the State has made no argument as to why the
Mirandized statements were obtained from a source wholly independent of the compelled
testimony, we reject the State’s argument that the incriminating statements were otherwise
admissible. See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
                                              III.
                                       CONCLUSION
       For the reasons set forth above, the district court erred in denying Powell’s motion to
suppress. The incriminating statements Powell made during the parole process were obtained as
a result of a classic penalty situation. Thus, Powell’s Fifth Amendment rights were implicated,
and his incriminating statements may not be used against him in a subsequent criminal
prosecution. Accordingly, we reverse the district court’s order denying Powell’s motion to
suppress and vacate his judgment of conviction.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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